ALJDEC

01F-A0272-ROC · Registrar of Contractors · 2001-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 2001. APPEARANCES: Maria Kudrzycki appeared on her own behalf. Respondent was represented by its qualifying party, Paul Russell. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainant alleges that Respondent has violated A.R.S. §32-1154(A)(2) (failure to follow specifications of plans or requirements of applicable building codes), A.R.S. §32-1154(A)(3) (failure to comport with the rules promulgated by the registrar, namely, the failure to build in a workmanlike manner in violation of A.C.C. R4-9-108), A.R.S. §32-1154(A)(7) (committing a wrongful or fraudulent act that results in substantial harm to another), and A.R.S. §32-1154(A)(23) (failure to comport with a corrective work order issued by the registrar). Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. FINDINGS OF FACT 1. On September 9, 2000, Complainant Maria Kudrzycki (hereinafter Complainant) entered into a contract with Respondent BEAM Southwest Construction (hereinafter Respondent) to construct a home in Dewey, Arizona. With respect to the . . . excavation of the site, the contract states that the contractor would provide a site “that will be excavated and correct for the structure to be built upon it.” Plaintiff’s Exhibit #2. The contract further provided that with respect to the concrete and foundation, those items would be installed “per code and plan.” Id. 2. The preparation of the building pad at the Dewey site had apparently earlier been completed by Ron Lips during late 1999 before Complainant contracted with Respondent to build the home. According to the evidence adduced at the hearing, Ron Lip does not appear to have been a licensed contractor at the time he prepared the building pad. 3. Prior to entering into the contract with Respondent, Complainant became aware that the building pad might not be stable enough to build upon. At the hearing, a letter prepared by V.H. Grading and sent to Complainant was introduced into evidence. The letter indicates that V.H. Grading had gone out to the Dewey site to perform a percolation test and determined that the pad was unsuitable for building upon as it was unstable. The letter further indicates that the lot be brought up with” fill for an engineered pad.” 4. Complainant testified that she informed Respondent before execution of the contract between the parties that this problematic condition existed. Complainant also testified that Respondent indicated he would take the necessary steps to ensure the pad was stable so that the home could be built. Respondent admitted that his company removed brush and shrub from test holes on the property. This is consistent with one of the remedies suggested in the V.H. Grading letter, and supports the testimony of the Complainant that Respondent was aware of the problematic nature of the building pad before construction was undertaken and, in all likelihood, before the contract between Complainant and Respondent was executed. 5. Respondent, with knowledge of the unstable nature of the building pad and, without taking sufficient corrective action to stabilize the pad, poured the footings, built the block foundation, and poured the floor slab.

6. Shortly thereafter, the slab began to crack and the foundation walls sank, making the foundation unsuitable for building a home upon it. Complainant and Respondent could not agree on a solution to the problem. Respondent’s attempts, which included placing a rebar structure over the slab and into the side of the foundation did not stop or even retard the foundation’s demise. Respondent, as a result of his interpretation of a letter from his insurance carrier, became convinced that the fault lay with Ron Lips, the person who did the initial excavation, and refused to take any further action to correct the problem. As a result, Complainant filed the instant complaint. 7. The registrar assigned Inspector Clifford Frandsen to review the complaint and inspect the job site. Inspector Frandsen completed his inspection on February 1, 2001. Inspector Frandsen determined, as a result of his inspection, that Respondent had built one half of the foundation on the stable portion of the building pad and one half on the unstable and improperly compacted half of the pad. He further determined that the foundation footings had not been engineered for resting on the unstable fill and this contributed to the damage to the foundation. Mr. Frandsen further determined, based on his training and experience both as a contractor and inspector, that the footings had no piers which would attach the footings to solid ground, a situation which would have obviated the need for proper compaction of the soil. The undersigned finds the inspector’s testimony in this regard to be credible. 8. At the hearing, a letter from Richard S. Busby, Chief Building Official for Yavapai County, was admitted into evidence as part of Plaintiff’s Exhibit #5. The letter indicates that Yavapai County issued a stop work order after their inspection of the project on February 5, 2001, revealed “major deficiencies in the construction of the foundation and concrete slab.” 9. As a result of his findings, Inspector Frandsen issued a corrective work order on February 7, 2001, requiring Respondent to (1) remove the fill at the building site, secure an engineered solution to the problem, and replace the concrete according to the engineered solution, (2) remove excess excavation debris from the adjoining property, and (3) remove excess excavation debris to provide usable access to the septic system. 10. Respondent failed to comply with any of the requisites of the corrective work order as of the date of the prehearing inspection, August 13, 2001. Respondent’s position, boiled down to its essence, is that he is not responsible for the unstable pad and, therefore, he has no responsibility for the failure of the foundation that he placed upon the unstable fill. Respondent also presented the testimony of Glen Copeland, a soils engineer. Mr. Copeland’s testimony demonstrates no more than that the soil was not properly compacted. Mr. Copeland’s testimony does not establish that Respondent took the steps necessary to ensure that the foundation was properly built given the fact that the soil was not properly compacted. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (2). Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision…in any material respect which is prejudicial to another without consent of the owner. . . . * * * (3). Violation of any rule adopted by the registrar. * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (23). Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.

A.A.C. R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 3. The evidence as demonstrated in Findings of Fact Paragraphs Seven and Eight above establishes that Respondent violated A.R.S. §32-1154(A)(3) by failing to comply with the administrative requirement that work be performed in a workmanlike manner. Though this issue was contested by the parties, the undersigned, having found the testimony of the inspector to be credible, finds that the foundation was not properly engineered to permit it to be built on uncompacted soil. Inspector Frandsen’s position is buttressed by the letter from the Yavapai County Building Official. Furthermore, the undersigned finds that in building upon the pad in the first place, Respondent “accepted the surface” as suitable for the purpose of placing the foundation upon it and therefore must be found to have violated workmanship standards as dictated by long-standing policy of the Registrar. This finding is compelled perhaps even more so in this case where Respondent was aware of the unstable nature of the soil prior to beginning construction but nevertheless chose to build upon the soil and never sought any waiver of the known defect from Complainant. In fact, Respondent told Complainant that the pad would be stabilized sufficiently to prevent any problems with the foundation. 4. The evidence also establishes that Respondent engaged in a wrongful act as required by A.R.S. §32-1154(A)(7). Respondent’s poor workmanship has resulted in substantial injury to Complainant in that the foundation, without an engineered repair to the affected portion of the foundation, is unusable. This conduct constitutes wrongful conduct within the meaning of this statute. 5. The evidence further establishes that Respondent violated A.R.S. § 32-1154(A)(23) by both failing to comply with the corrective orders issued by the Registrar as set out in Paragraphs Nine and Ten above. 6. Based on the evidence adduced at this hearing, the undersigned finds that Complainant has failed to demonstrate by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(2), though such failure is somewhat implicit in the manner that the foundation failed in this case. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class B license shall be suspended on the effective date of the Order entered in this matter until such time as written proof is submitted to the registrar showing that (1) appropriate and effective remedial work on the foundation has been made, (2) the excess excavation debris from the adjoining property has been removed, and (3) the excess excavation debris has been removed so as to allow useable access to the septic system. It is further recommended that if Respondent submits written proof to the Director that appropriate and effective remedial work on the foundation has been made and the excess excavation debris has been removed on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place. Instead, the citation and complaint in this matter should be closed. Done this day, September 4, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge

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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