ALJDEC decisions subject to certification as final

07F-A0421-ROC · Registrar of Contractors · 2008-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19 and 21, 2007 APPEARANCES: Marguerite Kirk, Esq. represented the Complainant.[1] Robert Blakely, Esq. represented the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. Certain essential facts of the case are not disputed. 2. In approximately December, 2006, the parties entered an oral contract whereby the Respondent would tear out an existing patio and construct a new quartzite (also referred to as flagstone) patio, and add quartzite stone to block walls and a waterfall-fountain, at the Complainant’s home in Prescott, Arizona. 3. The cost of the project was to be $8,000.00 ($4,000.00 for labor and $4,000.00 for materials). 4. The Complainant paid $4,150.00 to the Respondent but testified an additional $10,000.00 was paid by the Complainant for materials. 5. The Complainant terminated the Respondent toward the middle of February, 2007,[2] before the project was completed. The work was purportedly behind schedule, the Respondent would bring his children to the job site contrary to the Complainant’s wishes, the Respondent helped himself to beer from the Complainant’s home and may have been intoxicated on the job. Ultimately the relationship became so strained the Complainant filed a complaint with the police against the Respondent on February 22, 2007. 6. On February 22, 2007, the Complainant also filed the instant Complaint with the Registrar of Contractors (ROC). 7. On March 9, 2007, ROC Inspector Cliff Frandsen (Frandsen), performed a jobsite inspection. 8. According to Frandsen, portions of the quartzite (flagstone type) patio had low areas[3] causing water to flow toward and pond at the back of the home, including the two back doors leading outside the home. A 78”X 78” area of the back patio is a concrete pad for a hot tub. The water tends to pool in this area[4]. 9. On March 19, 2007, Frandsen issued a Corrective Work Order (CWO)[5], which required the Respondent to correct the pooling and flow condition by appropriate means. 10. The Complainant had another contractor install a French Drain which directs the water to be away from the back of the house. 11. According to Frandsen, at the time of the prehearing inspection on December 18, 2007, the French Drain appears to have solved the pooling problem. The Complainant testified the drain tends to get clogged. 12. The Complainant is dissatisfied with the French Drain solution because it is not what she (Cynthia Bowman) bargained for and she finds it aesthetically displeasing. 13. Jason Tally (Tally) holder of a K-5 specialty license also installs flagstone. He testified he would charge $16,969.67 for tear out, removal and reinstallation of the patio. The Respondent had worked for Tally. Another contractor, Northern Arizona Masonry, submitted bid of $25,735.03. The large disparity between bids was not specifically addressed. 14. John M. Nauke (Nauke), has masonry and stone block experience. He testified the work in the patio looked “great” except for the slope. He suggested removal[6] and a change of the direction of the slope of the patio which he believed did not have enough “fall” (¼ inch per foot according to Nauke[7]). 15. One of the additional problems with the patio is that its height is the same as the house floor. The patio cannot be raised where it meets the back of the house because it would be higher than the threshold and constitute a trip hazard. According to Nauke, a possible remedy is a drain system. 16. The Respondent testified the contract price was merely a “rough estimate”, that the flagstone was placed in mortar because the Complainants did not have the money for a concrete pad under the flagstone, the mortar needed at least 24 hours and possibly more to set in the winter, and the depressed areas were caused by the Complainants and their large German Shepherd dog walking on the flagstones before the stone had firmly set. Scott Seeley worked for the Respondent. He testified he observed Complainant, Chris Caparatta fall on the patio and the Respondent had to reset the flagstone. Seeley also testified he observed the Complainants and their dog walk over an area which had just been laid and that the dog would often walk about the patio while the Respondent was working. The Respondent testified he observed a “whole area sunk” and was considering a drain at the time the CWO was issued. He testified after contacting the Complainant about the CWO he attempted to fax an invoice to Complainant’s counsel on March 29, 2007. (This was apparently not received). 17. No corrective work was accomplished by the Respondent and the Complainant had the French Drain installed by someone else. 18. According to the Complainants, they were instructed and did not walk on the portions of the patio covered with a blanket. They also kept the dog off those areas. Complainant, Chris Caparatta (Caparatta), testified he pointed out the slope to the Respondent who accused him of causing the problem. Complainant Cynthia Bowman (Bowman) testified she made a similar observation regarding the slope and was told by the Respondent that it was an illusion. 19. The Complainant terminated the Respondent around mid February, 2007. The Respondent still had tools at the Complainant’s home which he finally retrieved. 20. The Complainant’s counsel informed the Respondent by letter that purchase invoices of materials to be used in repair be provided, 24 hour notice given, and a work schedule provided, before commencing corrective work. 21. The Respondent attempted to contact the Complainant and was directed to contact the Complainant’s counsel. 22. The Complainant had a French Drain installed. The drain functions mostly as intended although according to the Complainant there are still some areas where water pools. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §2- 1154(A)(3)/A.A.C. R4-9-108, relating to workmanship, (A)(7), a wrongful act with substantial injury (including financial injury), (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence Culpepper v. State, 187 Ariz. 431 (1996 App.)[8], A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 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 evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The evidence is clear that water runs toward the house. The question is whether the fault lies with the Respondent or the Complainant. According to the Respondent, the problem is due to the Complainants and or their dog having walked on some of the patio areas before the flagstone had properly set causing the stone to depress and creating low points which the water could follow toward the house. The DVD (exhibit C-19) which is in evidence supports the channeling of water toward the house and once there, the water collects and pools. If the general slope of the patio was away from the house, this should not occur. In addition, if the Respondent was aware of the depressed flagstones allegedly caused by the Complainant or the dog, as asserted, the Respondent should have been more alert to the possibility that the water might run in the wrong direction. Given the evidence in its entirety, it is determined that the general slope of the patio does not satisfactorily slant away from the house. It is also determined that the evidence does not show the Complainant (or the dog) is responsible for the depressed areas which channel water toward the back of the house. Given these conclusions, the violation of A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108 is established. 5. As to (A)(23), the CWO requires the Respondent to correct by “appropriate means.” The manner of correction is not specified. The Complainant’s counsel insisted by letter dated March 28, 2007 (Exhibit C-6), that the Respondent provide invoices for materials purchased to perform corrective work. It appears that the letter envisions a tear out and replacement of the patio. However, this is not necessarily what was required by the CWO. To the extent that the Complainant and Respondent never agreed on the manner of correction and in light of the fact that there appears to be more than one way to address the problem, the demand that that the Respondent produce purchase invoices for the tear out and replacement of all or most of the patio is not considered reasonable. 6. In conjunction with the above conclusion is the conclusion that the Respondent does not appear to have made a good faith effort to attempt to correct the patio problem. His assertions that he spoke with the Complainant’s counsel were incorrect (he possibly spoke with an assistant) and there is no evidence of the document purportedly faxed to the Complainant’s counsel. Irrespective of the Complainant’s actions, it is the Respondent’s attempt to comply with the CWO which determines whether there is a violation. A violation of (A)(23) is established. 7. In light of the consequences of he poor workmanship resulting in the Complainant having to install a French Drain, the cost of which was estimated to be $1,200.00, and the lack of good faith attempt by the Respondent to take appropriate corrective action, it is concluded the Respondent has also violated (A)(7). 8. The Administrative Law Judge (ALJ) is not convinced that tearing out the patio and replacement is required. The evidence suggests that the French Drain is accomplishing its purpose. Although the Complainant finds it aesthetically displeasing, aesthetics are subjective, personal, and rarely subject to accepted construction standards. In addition, the doctrine of economic waste[9] argues against tear out and replacement of the entire patio. Although restitution may be ordered under A.R.S. §32-1156.01, the difference in value between a properly sloped patio without a French Drain and an improperly sloped patio with a French Drain, was not established. Additionally, the ROC is generally not to appropriate forum for damages[10] which the Complainant is free to seek in a civil forum. Recommended Order It is recommended commencing the effective date of the Order[11] issued in this matter that the Respondent’s Class C-31 license shall be suspended for a period of three (3) days to be followed by a period of 120 days disciplinary probation. Done this day, January 9, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] The Complainants will be generally be referred to in the singular although the non captioned Complainant, Chris Caparatta, has standing by virtue of the fact he paid a portion of the cost of the contract to the Respondent.. [2] Except where otherwise noted, exact dates are not crucial to a decision in this case [3] Some of the stones appeared depressed. [4] Exhibit C-19 is a DVD of a water test. [5] Frandsen testified there is no specific workmanship standard for flagstone patios but that water should no flow into the house. [6] Not necessarily the entire patio, but such portion as would prevent or avoid the pooling at the back of the house and doors. [7] The Respondent testified the applicable building code only required 1/ 8” per foot slope. [8] The Culpepper case applies to an administrative agency. However, since any violation established in this case may result in a sanction by the agency, the ruling in the case applies equally to the Complainant. [9] The doctrine essentially provides that when if it is not economically feasible to repair defects, damages are limited to the difference in value of the structure as intended and as built. John G. Cameron Jr. A Practitioner’s Guide To Construction La w, §7.04, American Law Institute- American Bar Association, Philadelphia PA, 2003. [10] The primary function of the ROC is not to award damages as restitution but to protect public health, safety, and welfare by regulating contractors and keeping incompetent, dishonest or other wise unqualified persons from being licensed and appropriately disciplining those contractors who have violated applicable contracting law. [11] Forty (40) days from the date of the Order or the date of certification if certified by the Director of the Office of Administrative Hearings.

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