ALJDEC decisions subject to certification as final

07F-M0322-ROC · Registrar of Contractors · 2007-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4, 2007 APPEARANCES: Rodger Anderson, Complainant; Mike Schern, an attorney, and Joe Vindiola, Jr., on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

On August 8, 2006, a Complaint was filed with the Registrar of Contractors (“ROC”) alleging that Respondent had used substandard concrete in the construction of a foundation stem wall for a workshop at Complainant’s residence. On April 18, 2007, a Citation was issued by the ROC alleging that Respondent had violated A.R.S. §32-1154A (2), (7), (23) and (3), namely R4- 9-108. FINDNGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact: (1) In the spring of 2006, Complainant contracted with Respondent to complete some concrete work for a workshop Complainant was building at his residence. (2) In May, 2006, Respondent poured the stem walls as part of the foundation for the workshop. (3) Complainant, who was present at the time the stem walls were poured, testified that when the cement truck arrived, Respondent added approximately ten

gallons of water to the concrete mix. According to Complainant, he was told by Joe Vindiola, Sr., who was overseeing the project on behalf of Respondent, that the water was added to the concrete mix to allow more time for the concrete to set up because Respondent did not have enough people. (4) Joe Vindiola, Sr. testified that he had added ten gallons of water to the concrete mix before it was poured for the stem walls. However, he refuted the claim by Complainant that he had added the water because he was short-handed. He said that, when the concrete had arrived at the site, it was too dry. He estimated that it had a one and a half to two inch “slump,” which is the term used to describe the thickness of the mixture, and that a five inch slump was ideal for stem walls. He testified that the water was added to achieve the desired five inch slump. (5) After the cement had set up, and the forms were removed from the stem walls, Complainant observed some “shrinkage” cracks on the surface of the walls. However, he was told by Respondent that such cracks were normal, and he was not concerned. (6) When the project reached the point at which the stucco was to be applied to the exterior walls, the stucco contractor asked Complainant to chip away some of the stem wall concrete so that the “weep screed” would be below the top of the stem. Complainant began chipping the concrete and discovered that the chipped pieces had a powdery consistency, and could be crumbled by hand. (7) Complainant contacted Joe Vindiola, Jr., Respondent’s owner, who inspected the stem walls, but did not acknowledge that there was a problem with the quality of the concrete. (8) Complainant testified that the concrete “flat work” done by Respondent for the project had been excellent. He testified, however, that a chip from a corner of the flat concrete was considerably stronger than a chip from a corner of the stem wall. He introduced three photographs into evidence that he claimed visibly demonstrated the different concrete composition of the flat work and the stem walls. Exhibit C2, numbers 3,4 and 5. He also produced a sample chip of each type of concrete, and demonstrated that the chip from the stem wall concrete could be crumbled by hand, but that the flat concrete could not. (9) Ultimately, Complainant retained the services of an engineering firm, Wilcox Professional Services, to conduct tests on the concrete used in the stem walls. Initially, Wilcox inspected the stem walls and performed “rebound hammer” tests. Wilcox concluded that the “pick hammer penetrated side of stem walls with little effort.” Based on those hammer tests, Wilcox estimated that the average compressive strength of the stem wall was 2,200 pounds per square inch (“psi”). Exhibit C1. (10) On November 21, Wilcox obtained core samples of concrete from the stem walls and conducted compression tests at its lab. In its report, Wilcox pointed out that the specifications for the stem wall called for the concrete to attain a psi of 2,500 within 28 days after the concrete was poured. That fact was not disputed by Respondent. The report also indicated that the concrete core samples registered 2,475 psi and 2,415 psi approximately six months after it was poured. By extrapolating those lab results back to a date 28 days after the concrete was poured, Wilcox concluded that the compression strength of the concrete in the stem walls would have been approximately 1,500 psi. Exhibit C1. (11) The day after the Wilcox report was issued, Geoff Galgan, an inspector with the ROC, conducted an on site inspection in response to the Complaint that had been filed by Complainant. On December 11, 2006, the inspector issued a Corrective Work Order, (“CWO”) in which he indicated that the concrete stem walls do not appear “to have obtained the 2500 psi compressive strength as required per plan.” The CWO stated, however, that the inspector’s opinion was based entirely on the engineering report prepared by Wilcox. The CWO required Respondent to “correct by appropriate methods.” The inspector also testified at the hearing, however, that he did not observe any deficiencies in the concrete workmanship standards required by the ROC. (12) At the hearing, Respondent produced engineering reports issued by two separate companies which were based on core samples taken of the concrete on January 17, 2007, and on January 23, 2007. The first test, conducted by Alpha Geotechnical & Materials, Inc. concluded that the two core samples they had removed from the concrete stem walls registered compressive strengths of 4,079 psi and 4,748 psi. The second set of core samples, taken by Speedie and Associates, registered compressive strengths of 4,200 psi and 4,000 psi. Exhibits R1 and R2. Conclusions of Law: (1) Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. Arizona Administrative Code, Section R2-19-119. A “preponderance of the evidence” is proof sufficient to persuade the fact finder that a proposition is more likely true than not. (2) Alleged violation of A.R.S. §32-1154A (2): There was no dispute that specifications for the concrete stem wall required a compression strength of 2,500 psi within 28 days of the date the concrete was poured. Unfortunately, no engineering tests were conducted until at least six months later. Although the test conducted by Wilcox “estimated” that the concrete would have had a strength of only 1,500 psi if it had been tested 28 days after the concrete was poured, the actual core samples tested in late November, 2006 registered compression strengths of 2,475 and 2,415. Two months later, engineering tests conducted by Alpha and Speedie registered the compression strength of the same concrete at between 4,000 psi and 4,748 psi. There was no evidence presented at the hearing which either challenged the validity of any of the test results or which explained the discrepancy in those results. There was simply insufficient evidence to establish that the concrete poured by Respondent for the stem walls failed to meet the specifications for the project. (3) Alleged violation of A.R.S. §32-1154A (7): Violations of this statutory provision are classified as criminal offenses under A.R.S. §32-1164A (1). As such, they appear to be outside the purview of this administrative proceeding. However, assuming that alleged violations of this statutory provision are cognizable in an administrative proceeding and subject to a lesser evidentiary standard than that applicable in a criminal proceeding, there was no evidence to establish such a violation in this case. (4) Alleged violation of A.R.S. §32-1154A (23): Respondent did not do the corrective work originally ordered by the ROC inspector. However, Respondent did obtain two independent engineering reports regarding the compression strength of the concrete in the stem walls within a month after the CWO was issued. Those reports refuted the Wilcox report which had concluded that the concrete in the stem walls did not have the required compression strength. Additionally, when asked at the hearing whether he would have issued a CWO if the two reports subsequently obtained by Respondent had been available at the time of the on site inspection, the ROC inspector indicated that he certainly would have taken those reports into consideration in reaching his decision as to whether to issue a CWO. There was insufficient evidence to establish that Respondent’s failure to do the corrective work was without valid justification, and, therefore, a violation of A.R.S. §32-1154A (23) was not shown. (5) Alleged violation of A.R.S. §32-1154A (3), namely R4-9-108: The only issue at the hearing was whether the concrete mix met the required specifications for the stem walls. There was no evidence regarding Respondent’s failure to meet workmanship standards with respect to the completion of the stem walls, and, in fact, the inspector testified that he did not see anything regarding the workmanship on the project that failed to meet ROC standards for concrete contractors. There was insufficient evidence to establish a violation of A.R.S. §32-1154A (3). RECOMMENDED ORDER It is recommended that the Citation, together with the Complaint upon which it is based, be dismissed.[1] Done this day, September 11, 2007.

_______________________ Michael K. Carroll Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Pursuant to A.R.S. §41-1092.08D, failure by the Registrar of Contractors to accept, reject or modify this Decision within 30 days of receipt by the agency will result in this Decision being certified by the Office of Administrative Hearings as the final administrative decision. In the event of certification of this Decision by the Office of Administrative Hearings, the effective date of the Order in this matter will be 40 days from the date of that certification.

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

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