ALJDEC

02F-1024-ROC · Registrar of Contractors · 2002-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 2002 APPEARANCES: William Rochon, Complainant, Respondent did not appear ADMINISTRATIVE LAW JUDGE: Wendy S. Morton _____________________________________________________________________

The issue presented by this matter is whether Respondent GC Concrete, 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 GC Concrete, Inc. (“GC”) is the holder of a Class C-09 license (No. 146304) issued by the Registrar of Contractors (“ROC”). Gil Cortez is Respondent’s qualifying party. At the time Complainant contracted with Respondent, Respondent held a valid ROC license. Complainant William Rochon owns and occupies a home on 13413 W. Coronado Road, Goodyear, Arizona (“Home”). . . . . . . On February 22, 2001, Complainant met with Gil Cortez, the owner of GC and got an estimate for $3,000.00 for 630 feet of stamped or patterned concrete for his backyard pool area. The color and pattern of the concrete was supposed to look like wood. Respondent began work in late February or early March, 2001. Complainant began having communication problems with Respondent almost immediately. When the work first began, Mr. Cortez instructed his workers where to set the forms to pour the concrete and then left the jobsite. Complainant noticed that the slab was not a four inch slab as he had ordered, and he asked the workers to contact Mr. Cortez and have him return to the jobsite. Complainant did not hear from Mr. Cortez again until April 1, 2001. On April 1, 2001, Mr. Cortez returned to the jobsite. He excavated and laid the forms and said he would be “ready to pour Monday morning.” Despite this representation, and thirty to forty phone calls to Respondent, Complainant did not hear from Respondent for another month. Respondent did not pour the concrete until May, 2001. Respondent poured the concrete in two sections. The evidence demonstrated that the color of the concrete in the western half of the patio was darker than the eastern half of the patio, and that Complainant expressed his dissatisfaction with this condition. Complainant was also dissatisfied with the surface of the concrete. He testified that in certain areas the patterns or impressions overlapped, and that in other sections it was difficult to see the pattern at all. Complainant also testified that the finish of the concrete was sandy and that after the installation there was “powder all over the pool” that was not cleaned up. Complainant continued to have difficulty contacting Respondent. Complainant stated that it took fifteen phone calls to finally reach Mr. Cortez. On June 19, 2001, Mr. Cortez went to the jobsite and Complainant paid him $1,000.00. . . .

Several days later, Mr. Cortez returned to the jobsite and power washed the concrete. During this process, Complainant heard Mr. Cortez “constantly cursing” his workers, saying “what in the world did you guys do to this? I taught you better than this.” Complainant also heard Mr. Cortez say, “I don’t know how in the world I’m going to get this worked out.” Complainant testified that while Mr. Cortez was washing the concrete, he could see the water pooling, and not draining as it was supposed to. Complainant testified that Mr. Cortez admitted to him that the workmanship was poor. Mr. Cortez stated that “anything could be corrected” and offered to re-color the concrete or to take a diamond drill and go over the impressions. He told Complainant, “don’t worry, I can get it straightened out.” Respondent last worked on the Home on June 23, 2001. Complainant was then unable to get Mr. Cortez to return any of his calls. Complainant was very dissatisfied with the condition of the concrete. He testified that he had a $350,000.00 home and “it looked like the Budweiser Beer Brothers poured [the concrete].” He had planned on having guests all summer and had to apply duct tape to his concrete to protect people from falling in certain areas. On June 25, 2001, Complainant contacted the ROC to file a complaint but due to an error, he was referred to the Recovery Fund Section. Complainant filled out the wrong form and sent the form to the wrong section of the ROC’s Office, thus delaying until December the process of filing a complaint. In July, 2001, frustrated by Mr. Cortez’ unresponsiveness and the inability to resolve the situation, Complainant contracted with another company to install Kool Deck over the work that Respondent had done. Complainant testified that he did this for aesthetic reasons, and that the installation of the Kool Deck did not solve the drainage problems created by Respondent. Prior to the installation of the Kool Deck, Complainant took photographs of Respondent’s work. (Complainant’s Exhibit 1B and 1C). These photographs corroborate Complainant’s testimony regarding the problems with the finish, coloration and overlapping patterns in the concrete. The concrete that was installed by Respondent (and which now has Kool Deck over it) abuts against a concrete slab that was installed by Paddock Pools when the Home was originally constructed in December, 2000. The Paddock concrete, in turn, abuts against a concrete patio. Complainant testified that the original patio concrete is now being damaged because the concrete installed by Respondant is moving and pushing the Paddock concrete against the concrete patio. Complainant further alleged that the concrete installed by Respondent is not level and is lower than the adjacent Paddock concrete. The difference in elevation is causing a “toe stubber” all around the pool. Complainant testified that this is a “liability problem.” On December 11, 2001, Complainant filed a complaint against Respondent with the ROC. Inspector Mel Purchase was assigned to investigate the Complaint. On December 31, 2001, Inspector Purchase conducted a jobsite inspection at the Home. Complainant, Inspector Purchase and Gil Cortez for Respondent were present during the inspection. Inspector Purchase was unable to view Respondent’s concrete work because Complainant had installed Kool Deck on top of it. However, Inspector Purchase was able to observe examples of poor workmanship in Respondent’s work and therefore corroborated Complainant’s testimony. Inspector Purchase flooded the area and observed some “ponding” of water due to the surface (Kool Deck on top and Respondent’s concrete underneath) sloping the wrong way. Inspector Purchase testified that there was no place for the water to drain. Mr. Cortez admitted that this was a problem. He stated that he was never given a chance to correct it. Mr. Cortez stated that he could still correct it but never returned to the Home again. Inspector Purchase also observed chipping where the various concrete surfaces met, and some ridges where the stamped concrete installed by Respondent was covered up by the Kool Deck. Inspector Purchase also observed some tripping . . . hazards where the slabs were not the same height. The difference in height in some places was 3/8 of an inch. Mr. Cortez admitted to Inspector Purchase that there were problems with his workmanship. He stated that the reason the problems took so long to resolve was that he was experiencing marital problems and was going to be moving to New Mexico. Inspector Purchase testified that the workmanship problems were “obvious” and that the work did not meet minimum industry standards. Inspector Purchase testified that in his opinion the concrete “all around the pool” needs to be “removed and replaced.” Inspector Purchase testified that “but for” the Complainant’s installation of the new Kool Deck over Respondent’s concrete, he would have issued a CWO to Respondent. However, since new Kool Deck now covered Respondent’s work and that surface had not failed, such an order was not appropriate. Inspector Purchase testified that according to ROC policy, Complainant had “accepted the surface” when he had the Kool Deck installed and therefore could not recover against Respondent. The Administrative Law Judge finds that the application of this principal is inappropriate under these circumstances. The doctrine of “accepting the surface” applies to contractors who do work upon the work of other contractors and by doing so “accept the surface” of another as fit for its purpose. Complainant is under no such burden. A home owner is not precluded from mitigating his damages; quite the contrary, the law favors this approach. In the instant case, Complainant has set forth a prima facie case with undisputed evidence that Respondent’s workmanship failed. Complainant testified that the Kool Deck covering Respondent’s work was installed for aesthetic reasons only, and only after Respondent had abandoned his responsibilities under the contract. The record is clear that Mr. Cortez repeatedly promised to correct a job that he was not himself happy with. Complainant made numerous phone calls which were ignored, and work was left unfinished for months. Complainant did not effectively waive or release Respondent from responsibility by restoring his property to a condition upon which it could be used and enjoyed and by attempting to eliminate hazards thereon. On January 31, 2002, the ROC issued a Citation and Complaint against Respondent, charging Respondent with violations of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(1) (abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse to do so) and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). On February 27, 2002, The ROC issued a Notice of Hearing setting this matter for hearing on April 2, 2002. Complainant timely appeared for the scheduled hearing; Respondent failed to appear. The Administrative Law Judge delayed the start of the hearing for approximately fifteen (15) minutes so as to allow added time for appearance by or on behalf of Respondent. When Respondent failed to appear within that time, and further failed to inform the Office of Administrative Hearings of any reason that would establish good cause for its failure to appear, the Administrative Law Judge convened the hearing and proceeded in Respondent’s absence. The Administrative Law Judge finds, on the weight of the uncontroverted evidence, that the workmanship on the concrete installed by Respondent does not meet minimum industry standards and should be corrected by appropriate means. The Administrative Law Judge takes notice of the ROC’s license records which reveal that Respondent’s Class C-09 license has been suspended by operation of law since July 1, 2001 for non-renewal. The suspension does not preclude the ROC from conducting these proceedings nor does it prevent Complainant from pursuing administrative remedies. Moreover, such suspended status of the license must be considered when formulating an appropriate Order in this action. CONCLUSIONS OF LAW 1. In this administrative proceeding Complainant bears the burden to prove, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(1), (A)(7) and/or (A)(3) as charged by the ROC in its January 31, 2001 Citation and Complaint. See 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). 2. The Administrative Law Judge concludes that Complainant sustained his burden to prove that Respondent failed to comply with the ROC’s minimum workmanship standards for the installation of Complainant’s concrete. The Administrative Law Judge concludes that in so doing, Respondent violated A.R.S. § 32-1154(A)(3) as charged by the ROC in its Citation and Complaint.

3. The Administrative Law Judge further concludes that Respondent violated A.R.S. § 32-1154(A)(7) as charged by the ROC by failing to perform appropriate corrective work and by engaging in a wrongful act that substantially injured Complainant. 4. The Administrative Law Judge further concludes that Respondent violated A.R.S. ( 32-1154(A)(1) by abandoning its contract with Complainant and refusing to perform its responsibilities under that contract. RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s Class C- license (No. 146304) be revoked on the effective date of the Registrar’s Order.

Done this day, April 19, 2002.

______________________________________ Wendy S. Morton 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 ___________________________

-----------------------

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