ALJDEC

02F-L0026-ROC · Registrar of Contractors · 2002-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 20, 2002. APPEARANCES: Skeet Haggerton appeared on his own behalf. DBU Construction was represented by Jesse Ullery. Riverside Concrete was represented by Tony Facciuto. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ These consolidated matters were heard on March 20, 2002 and the record was left open to allow the parties the opportunity to explore and potentially reach settlement on or before May 10, 2002. It became apparent before the May 10, 2002, deadline that the parties would not reach any agreement. The parties confirmed in a telephonic conference held on April 30, 2002, that no agreement would be reached to settle this case. Accordingly, this recommended decision was issued. In these cases, Complainant Haggerton (hereinafter Complainant) contends that Respondent DBU Construction (hereinafter DBU) violated A.R.S. 32-1154(A)(3) (violation of any rule promulgated by the Registrar, namely, A.C.C. R4-9-108 which requires that all work be performed in a workmanlike manner), 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 properly issued corrective work order. DBU contends in its cross complaint that Respondent Riverside Concrete (hereinafter Riverside) violated A.R.S. 32- 1154(A)(3)(violation of any rule promulgated by the Registrar, namely, A.C.C. R4-9-108 which requires that all work be performed in a workmanlike manner), 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 properly issued corrective work order. 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. Respondent DBU is a properly licensed general contractor in the business of building residential homes in Lake Havasu City, Arizona. Riverside is a properly licensed concrete subcontractor which, until recently, contracted to pour footings, stem walls, slabs, driveways, and patios for homes built by DBU. 2. Complainant purchased a home built by DBU. The concrete work for the home was completed by Riverside. Complainants took occupancy in December, 2000. According to Complainant’s testimony, cracks were visible in the slabs poured under the house even before Complainant took possession of the home. Complainant asked DBU’s foreman, John Rosenbaum, about repairing the cracks. Rosenbaum apparently repaired the cracks before Complainant took possession by filling the cracks with an appropriate filler. There was no evidence that the cracks in the floor exceeded the maximum allowable width as set forth by the Registrar’s regulations. And while Complainant contends that those cracks were not properly filled, he has presented no evidence to substantiate that assertion. 3. After the cracks in the slab of the interior of the home were filled, the bulk of the interior floor space was covered with large 18 inch tile. All parties agree that no cracks have developed in any of the tile in any part of the house. 4. Unfortunately, after Complainant took possession, cracks exceeding the maximum width allowed by regulation developed in exterior concrete areas, specifically, the garage floor, the rear patio, and the driveway. Complainant became convinced that these cracks, as well as the cracks in the interior portion of the home, were due to improperly compacted soil. He presented nothing but pure speculation to back up this claim. Indeed, Complainant had apparently indicated to the respondents that he intended to get engineering studies to determine whether the soils had been properly compacted by the time of the hearing, but he failed to do so. 5. On the issue of soil compaction, DBU presented the testimony of the entity that completed the grading, and the entity that conducted the soil testing to determine he percolation rate of the soil. In addition, the Lake Havasu City inspector who reviewed the project immediately before the concrete was poured for the footings, stem walls, and slabs, to ensure that forms had been properly set and rebar properly placed in conformity with applicable city codes, also testified. The resounding testimony of all of these witnesses was that there was no compaction problem with the soil that might have been the cause of the failure of the concrete on the garage and patio. Thus, the undersigned concludes that Complainant has failed to demonstrate that compaction is the cause of the concrete failure. 6. DBU and Riverside do not contest that the concrete needs to be repaired in the areas of the garage and the rear patio. Riverside has been willing take out and replace the garage and patio areas. Complainant has been unwilling to allow the repair to occur, feeling that the problem relates to the soil compaction, and simply replacing the concrete would not deal with what Complainant perceives to be the problem. 7. Complainant also noted that the north wall of the home exceeded regulatory standards for variance by ¼ inch and that the house lights would occasionally dim when either the heat or the air conditioning started. 8. As a result of these problems, Complainant filed a complaint against DBU and DBU in turn filed a complainant against Riverside. Inspector Corlet conducted a job site inspection and issued a corrective work order to each of the respondents. The order to Riverside directed it to (1) correct by appropriate means the excessive cracking in the garage and rear patio concrete, (2) correct a concrete crack in the upper driveway, and (3) repair the middle section of the driveway where there is a crack and the distance between control joints exceeded the maximum allowable distance under the registrar’s workmanship standards. The order to DBU required that entity to (1) ensure that the concrete repair was completed in accord with the corrective work order issued to Riverside, and (2) correct the waviness in the north wall of the home to conform to the Registrar’s standard of being straight within ¼ inch. Inspector Corlett found that there was no violation with respect to the electrical system as the dimming could not be replicated while the inspector was present. 9. With respect to the electrical system, Complainant presented no substantial evidence to confirm any problem with the electrical system. DBU presented the testimony of the electrical contractor and the air conditioning which demonstrated to the undersigned that there is no problem with the electrical system. 10. With respect to the wall, DBU is willing to fix that problem. DBU has presented evidence of a method of fixing the wall that it believes will work. Complainant does not agree with that proposal. Whatever the proposal, the Registrar does not mandate a particular method of undertaking remedial repairs. The Registrar simply requires that whatever the method, the work must be performed in a workmanlike manner. Thus, Complainant’s concern is really unfounded. The Registrar requires that the work comport with applicable regulations. The contractor must repair the problem in a workmanlike manner so that the deficiency no longer exists and comports with the workmanship standards of the Registrar. The Registrar’s directive to DBU to bring the north wall within tolerances required by the Registrar will result in workmanship that meets the Registrar’s standard or will result in further sanctions in the event the work is not completed in a workmanlike fashion. In either event, Complainant is protected. 11. There is no evidence in this case that respondents ever failed to comport with any corrective order issued by the Registrar. 12. The undersigned has considered the respective complaint history of each of the respondents in arriving at the recommended decision in this case. 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:

* * * (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. As demonstrated in Findings of Fact Paragraph Four and Eight above, the evidence establishes that respondents violated A.R.S. §32- 1154(A)(3) by failing to install the concrete in the garage and patio in a workmanlike manner. In addition, Findings of Fact Paragraph Eight demonstrates that DBU violated A.R.S. §32-1154(A)(3) by failing to install the north wall in conformity with the Registrar’s workmanship standards. 4. The evidence has failed to demonstrate by a preponderance of the evidence that either respondent committed a wrongful or fraudulent act in violation of A.R.S. §32-1154(A)(7). 5. As demonstrated in Findings of Fact Paragraph Eleven above, the evidence fails to establish that either Respondent violated A.R.S. §32- 1154(A)(23). RECOMMENDED DECISION Based upon the foregoing, it is recommended that commencing on the effective date of the final order entered in this matter, Respondent Riverside Concrete’s Class C-09 License No.[number redacted] shall be suspended until such time as Respondent has (1) corrected by appropriate means the excessive cracking in the garage and rear patio concrete, (2) corrected by appropriate means the concrete crack in the upper driveway, and (3) repair by appropriate means the middle section of the driveway where there is a crack and the distance between control joints exceeded the maximum allowable distance under the registrar’s workmanship standards. It is further recommended that, commencing on the effective date of the final order entered in this matter, Respondent DBU’s Class B- License No.103322 shall be suspended until such time as Respondent has (1) insured that the directives set forth above with respect to the concrete have been accomplished in conformity with the workmanship standards mandated by the Registrar, and (2) insured that the waviness of the north wall of the home is corrected by appropriate means in conformity with the workmanship standards mandated by the Registrar. It is further recommended that if the respondents submit written proof to the Registrar on or before the effective date of the final order entered in this matter that the directives set forth in the above paragraphs have been accomplished, then the citations and complaints issued in this matter should be closed. Done this day, April 30, 2002.

______________________________________ Gregory L. Hanchett 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