ALJDEC

01F-2606-ROC · Registrar of Contractors · 2002-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2001 APPEARANCES: Eric Sachrison, Esq. represented Complainant Dream Creek Condominium Association. Robert Shull, Esq. represented Respondent ReNew Sealers of Arizona, Inc. ADMINISTRATIVE LAW JUDGE: Constantino Flores _____________________________________________________________________

The issue presented by this matter is whether Respondent ReNew Sealers of Arizona, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent ReNew Sealers of Arizona Inc. (“ReNew”) is the holder of a Class C-13 license (No. 066115) issued by the Registrar of Contractors (“ROC”). Thomas Neu is the qualifying party. . . . . . . On or about November 21, 2000, ReNew entered into a contract with Complainant Dream Creek Condominium Association (“Dream Creek”) to perform asphalt work on various areas within the condominium community of Dream Creek. Specifically, the work to be completed by ReNew pursuant to the contract consisted of the following items: d. Remove and replace 13,524 square feet of 2’’ asphalt at entrance; e. Remove and replace 405 square feet of 3’’ asphalt at 33rd Place and Aire Libre;

c. Crackfill and type II slurry seal 96,142 square feet of streets based on three (3) moves;

d. Additional 1135 square feet of removal and replacement of 2’’ asphalt in five (5) areas; and

e. Additional removal and replacement of 776 square feet of 4’’ concrete. 4. ReNew completed the asphalt work for which it was contracted. 5. On May 1, 2001, Dream Creek filed a complaint against ReNew with the ROC. In that complaint, Dream Creek alleged that the “slurry seal was applied in such a fashion as to create a washboard. Replacement asphalt is uneven, retains water and is hilly. Curb needs replacement.” 6. ROC Inspector Warren Duncan investigated Dream Creek’s complaint. 7. On June 18, 2001, Inspector Duncan conducted a jobsite inspection. Present during this inspection were Heidi Lervik and Frank Grishkat from Dream Creek, and Thomas Neu, Manny Neves and Rob Padilla from ReNew. 8. On July 5, 2001, Inspector Duncan issued a Corrective Work Order (“CWO”) under which the ROC gave ReNew 15 days to correct a number of deficiencies alleged by Dream Creek. . . . . . . . . . 9. The items set forth in the CWO are as follows: 1. Depressions in asphalt, areas of ponding, complainant and contractor have agreed to walk-off and identify deficient areas. Contractor to correct by appropriate means.

2. Alligatoring of asphalt at entrance to 33rd Street. Contractor to correct by appropriate means.

3. Damaged concrete curb. Corrected prior to jobsite. No action required by contractor.

4. Scuffing of asphalt surface. Caused by turning car wheels while car is not in motion. No action required by contractor.

5. Areas of pop-outs, asphalt visible through slurry. Contractor to correct by appropriate means.

6. Wash-board effect in numerous locations where slurry coat has been applied. Contractor to correct by appropriate means. By August 17, 2001, ReNew had taken several corrective measures addressing all items of the CWO which required corrective action. These measures included patching of the areas of depression in the asphalt which caused ponding, as well as rerolling slurry seal with a pneumatic roller over the area that had the washboard effect. Items 2-5 of the CWO were corrected to Dream Creek’s satisfaction. However, the corrections made to items 1 and 6 of the CWO did not meet with Dream Creek’s approval. On October 9, 2001, the ROC issued a Citation and Complaint charging ReNew with violations of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action in response to written ROC directive) and (A)(3) (violation of any rule adopted by the ROC, in this case, Rule R4-9-108 covering workmanship standards). At hearing, Dennis May, the agent for Dream Creek testified that after the asphalt at the entrance to the Dream Creek community was replaced, the new asphalt installed by ReNew showed wavy areas and areas of “major ponding.” He further stated that the repair done by ReNew of this area essentially consisted of patching areas of depression. After the repairs, the area still had some ponding and now showed approximately a half dozen unsightly patches which do not match the rest of the new asphalt. As to the repair to the washboarding, Mr. May noticed that while driving on that area the washboarding was still present. Tom McDonald, the Complainant’s expert testified that after inspecting the two areas subsequent to the corrective work done by ReNew, he found that the entrance area contained a number of patches and had a couple of areas of depression which were plainly visible. He explained, however, that some ponding is acceptable in an area where new asphalt has been laid. On cross examination, he stated that patching is a recommended way to fix depressions that cause ponding. In regards to the area that had the washboarding, when driving on it he experienced a rough, bouncy ride. He found this washboarding not to be common, and likely caused by the slurry driver driving too fast when laying the slurry coat. Inspector Duncan testified that after ReNew performed the corrective work, he reinspected the jobsite and found that in regards to the entrance area there were a number of patches which were obvious but of good quality. He noticed no low spots in the driveway. He agreed that he saw no problem areas after the patching had been performed. In regards to the washboarding, he stated that it was still present. Dr. W.R. Meier, Ph.D., the Respondent’s expert, a civil engineer and widely recognized expert in the asphalt industry, testified that he inspected the jobsite subsequent to the corrective action taken by ReNew. Concerning the new asphalt and patching work performed at the entrance, he testified that the original work and the corrective measure of patching exhibited reasonable workmanship, except for a 20 to 30-square-foot area of “questionable” quality. The location of this area was described as being right at the end of a patch that had been already placed. He did not notice any washboarding, however, after driving on the slurry-seal-coated area. He explained that the work done in this area was a typical job of slurry seal coating. Finally, after explaining the process of laying slurry seal, he testified that in his many years of experience, he has never seen or felt washboarding which was caused by coating with slurry seal. This is because a slurry seal coat is approximately 1/8 to 1/4” thick when applied, and it is then rolled by machinery. The Administrative Law Judge finds Dr. Meier offered the more credible testimony in regards to both the asphalt work done at the entrance as well as the area that was coated with slurry seal. Based on the foregoing, the Administrative Law Judge finds that the work done at the entrance meets minimum workmanship standards, except for the 20 to 30- square-foot area described by Dr. Meier, and therefore, ReNew failed to fully comply with item 1 of the CWO. Further, the ALJ finds that the work done on the area coated with slurry seal meets minimum workmanship standards. CONCLUSIONS OF LAW In this proceeding, Dream Creek bears the burden to prove, by a preponderance of the evidence, that ReNew is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7) and/or (A)(23) as charged by the ROC. See Arizona Administrative Code (“A.A.C”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Dream Creek has met its burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged ReNew with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The weight of the credible evidence demonstrated that as to CWO item 1, ReNew failed to perform its work in a professional and workmanlike manner, and in so doing violated A.A.C. R4-9-108. Therefore, ReNew violated A.R.S. § 32-1154(A)(3). As to CWO item 6, the Administrative Law Judge concludes, based on the evidence presented, that ReNew did not fail to perform its work in a professional and workmanlike manner. Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” The Administrative Law Judge concludes, from the evidence presented, that ReNew failed to fully comply with the ROC‘s July 5, 2001 CWO, and that ReNew did not offer any valid justification for that failure. Therefore, ReNew violated A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented that ReNew committed a wrongful act by failing to perform its work at the Dream Creek community in a workmanlike manner, and by thereafter failing to comply fully with a written directive of the ROC to correct that work. ReNew’s conduct substantially injured Dream Creek by causing undue delay in the completion of the contracted work in that community. Therefore, ReNew violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against ReNew’s license. The ROC’s October 9, 2001 Citation and Complaint advised ReNew that in the event of a finding of a violation against it, ReNew’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against ReNew in the ROC’s official records. Those records revealed the absence of any final ROC orders against ReNew within the last two years. The Administrative Law Judge considered this disciplinary record when determining appropriate recommended discipline in this matter. Upon consideration of all of the facts and circumstances presented by the case, the Administrative Law Judge concludes that ReNew’s class C-13 license (No. 066115) should be suspended. However, such suspension should be conditional and ReNew should be given the opportunity to avoid suspension by completing the corrective work required under item 1 of the CWO, specifically, repairing the 20 to 30-square-foot area of depression which causes ponding at the entrance of Dream Creek’s property, or by entering into a mutually acceptable arrangement with Dream Creek. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended order: Commencing on the effective date of the Order entered in this matter, ReNew’s Class C-13 license shall be suspended until the ROC receives credible written proof that ReNew has complied with the following alternative conditions: ReNew has completed item 1 of the CWO, specifically, the repair of the 20 to 30-square-foot area of depression that causes ponding at the entrance of Dream Creek’s property, in a professional and workmanlike manner; OR ReNew has entered into other mutually acceptable arrangements with Dream Creek. If the ROC receives credible written proof that ReNew has complied with one of the foregoing conditions on or before the deadline identified above, then the above provided license suspension shall not take place. Done this day, January 8, 2002

______________________________________ Constantino Flores Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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