ALJDEC

01F-1267-ROC · Registrar of Contractors · 2001-02-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2001 APPEARANCES: Julian and Beverly Peagler on their own behalf; John Somero on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On December 9, 1999, the parties entered into a written contract (the “Contract”) for specified work consisting of demolishing and removing an existing driveway and constructing a colored concrete driveway (the “driveway”). 2. Complainants Julian and Beverly Peagler (“Complainants”) allege certain deficiencies in the work performed by Somero Southwest Concrete, Inc. (“Respondent”). In particular, Complainants allege that the driveway constructed by Respondent has color and texture that is not uniform in appearance, the driveway has areas of discoloration, and contains cracks. 3. On May 4, 1999, Registrar of Contractors’ Inspector Bob Mechsner performed a courtesy inspection of the driveway in the presence of Complainants and John Somero, Respondent’s president. 4. During the hearing, Inspector Mechsner testified that the conditions he observed on May 4, 1999, were the same as what he observed at a pre-hearing inspection performed on February 14, 2001. 5. Inspector Mechsner further testified that he observed color differences in the driveway. It appeared to Inspector Mechsner that the driveway has two different colors that do not match. Inspector Mechsner also testified that in some areas of the driveway he observed a broom finish, while other areas appeared to have a smooth finish or appeared rough with no broom lines. 6. Inspector Mechsner also observed that the expansion joints and tooling around the driveway were uneven and voids exist. 7. The photographs Complainants presented during the hearing depicting the physical appearance of the driveway (Exhibits A through H) were viewed by Inspector Mechsner who testified that they accurately reflect what he observed when he performed the pre-hearing inspection. 8. Inspector Mechsner’s testimony established that the driveway consists of areas that vary in color and texture, the expansion joints and tooling around the driveway are uneven, and the driveway has voids that need to be filled. 9. Respondent contends that a portion of the driveway contains some black marks due to additional trowelling performed by Respondent because of cracking that occurred to the cement as a result of drying quickly under existing windy conditions and accepts responsibility for that. However, Respondent asserts that due to the difficulty of the job (i.e., the intense slope of the area), the restriction as to the load of material Respondent could bring to the home, the disclaimer in the Contract that Respondent “does not guarantee an exact color match between batches of concrete”, and that the lower portion of the driveway was washed and scrubbed by one of Complainants’ employees within a couple of days after the driveway was poured, absolves Respondent from being responsible for the color and texture deviation. 10. The Contract provides that “some slight color variations between truck loads may occur.” 11. The evidence of record established that Complainants use their residence as a mailing address for several businesses they own and that employees of those businesses, such as an individual named J. K. Jones (“Mr. Jones”), frequent their home from time to time. 12. Sharply conflicting evidence was presented regarding whether Mr. Jones washed or scrubbed a portion of the driveway. Mr. Jones testified that he did not perform either act during the relevant time frame. However, Respondent’s foreman on the job during the relevant time, Don Cadriel (“Mr. Cadriel”) testified that he observed Mr. Jones on two occasions washing and scrubbing half of the lower portion of the driveway. Consequently, the evidence is inconclusive on this issue. 13. Assuming arguendo, that there was an intervening act, i.e. the washing and scrubbing of the driveway, that does not excuse Respondent from correcting the deficiencies in the driveway. This is because both Mr. Somero and Inspector Mechsner testified that if only a portion of the driveway were corrected, the driveway would not appear uniform in appearance and texture. Inspector Mechsner also testified that the appropriate course of remedial action is to have the existing concrete driveway completely removed and replaced. Further, the contention that the washing and scrubbing caused the difference in color of the concrete does not explain why the entire lower portion of the driveway has a different color than the top portion of the driveway because Mr. Cadriel testified that the washing and scrubbing only occurred to half of the lower portion of the driveway. 14. Mark Peagler, Complainants’ son, testified that one area of the driveway contains a crack that is approximately eight feet in length and ¼ of an inch wide. Inspector Mechsner observed that crack during the pre- hearing inspection and testified that the crack should be repaired. 15. Inspector Mechsner also testified that the driveway is structurally sound but that the color, texture, and voids are aesthetically displeasing and not within minimum workmanship standards. 16. The testimony of Inspector Mechsner and Mark Peagler, as set forth above, is determined to be credible 17. Mr. Somero credibly testified that the instant job was the hardest Respondent has done concerning the installation of a concrete driveway and that Respondent could not do any better if given an opportunity to remedy the situation. Mr. Somero walked the driveway, performed measurements, and was aware of the above-mentioned load limitation prior to entering into the Contract. It is determined that in submitting a bid to perform certain stated work which was accepted by Complainants, Respondent undertook to perform that work accepting the existing conditions. 18. It is undisputed that Respondent has not taken any action to correct the above-mentioned deficiencies. 19. Respondent’s action in performing construction work in an unworkmanlike manner and failing to correct the deficiencies of such work are found to constitute a wrongful act causing substantial injury to Complainants. 20. Notice of Respondent’s licensing status with the Registrar of Contractors revealed that, other than a suspension by operation of law that occurred between July 7, 2000, and July 11, 2000, Respondent has not had any recent disciplinary action taken against its license. CONCLUSIONS OF LAW The evidence of record established that Respondent has violated the provisions of A.R.S. §§32-1154(A)(7) and (A)(3), namely A.A.C. R4-9-108. RECOMMENDED ORDER Based on the above, it is recommended that commencing on the effective date of the Order entered in this matter, Respondent’s Class C-09 license be suspended until the Registrar receives written proof that Respondent at its own expense, has caused a currently properly licensed contractor to remove and replace the existing driveway in accordance with the Contract. It is further recommended that, if Respondent complies with the above and provides the Registrar in writing of such compliance on or before the effective date of the Order entered in this matter, then the above- mentioned license suspension shall not take place and, in that event, the Citation issued in this matter, together with the Complaint upon which it is based, shall be closed. Done this day, February 27, 2001.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826