ALJDEC decisions subject to certification as final

08F-1869-ROC · Registrar of Contractors · 2009-03-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 2009.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondent appeared through Patrick Mark Pisanelli, its qualifying party and a member of the LLC entity.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Respondent agreed to and did furnish the necessary installation labor for the placement and setting of a significant quantity of expensive stone pavers around the rear yard, on the patio and around the poolside at Complainant’s residence.

2. Complainant was to and did furnish the selected stone materials for use as pavers as well as most of the needed grout materials. Additionally, Complainant was

shown to have fully paid Respondent under two separate invoices, one for the pool coping and another for the rest of the rear yard surface areas, in the combined aggregate total sum of $15,807.30.

3. The manufacturer of the selected and installed paver materials, in its printed brochure, specifically alerted potential customers that their product was natural stone and was fabricated by methods that often could and does lead to some degree of imperfections and cracking.

4. Numerous items or areas of alleged substandard work were identified by Complainant as part of a formal complaint filed with the Registrar of Contractors against Respondent. Following a jobsite visit, the Registrar’s assigned Inspector confirmed the existence of many of the deficiencies by issuing to Respondent a written Corrective Work Order requiring Respondent to undertake and accomplish appropriate remedial work at specified locations.

5. The Inspector credibly testified at the hearing that, although several areas had been adequately addressed by Respondent’s subsequent efforts, certain portions of the work remained unacceptably rectified. The quantity and extent of the existing deficiencies was far less than as claimed by Complainant who sincerely believes and urges that widespread corrections over a substantial portion of the installed paver surface are needed so as to achieve his desired aesthetic results.

6. The installation by Respondent of the stone materials on top of a low planter wall with a radius which followed the contours of a stucco planter wall below such top surface. That stucco planter wall was intended later to be and eventually was covered with a stone facing. The end result was a failure to achieve an uninterrupted visible, rounded radius along the top of the wall. Additionally, the stone pavers so placed on the top of the wall were left ungrouted. After the issuance of the Inspector’s

directive, Respondent subsequently did apply grout that was of a different tan color than the bone-color grout previously furnished by Complainant and utilized by Respondent for the rest of the paver installation in all other locations.

7. It is found that the failure to provide a rounded radius without any flat portions as well as the tan grout color used by Respondent is substandard and unacceptable, thereby necessitating a repositioning of the stone pavers by Respondent, followed by the removal and reapplication of grout with a more closely matching bone color grout material.

8. The positioning of the paver stones did allow for some visible unevenness between the various pieces which were laid in a “hopscotch” pattern utilizing at least three different sized stones and also some border pavers of thinner dimensions. Many, if not most, of these gaps were not sufficiently shown by a preponderance of relevant, probative and reliable evidence to be excessive according to prevailing industry standards and tolerances. However, in a very few locations, several areas did reveal the existence of some excessively visible voids indicative of missed pieces, of a few paver pieces that had become unacceptably loose and of several excessively cracked pavers that were allowed to remain in place. These areas, which were not sufficiently shown to have existed at more than approximately ten or twelve separate locations, must be effectively addressed and rectified by Respondent.

9. The evidence tended to indicate an inconsistent pattern of positioning border pavers around a column and also the paver spacing at each side end of certain steps was of a different width dimension. These inconsistencies must be appropriately rectified by Respondent.

10. All other items of claimed deficiency were not sufficiently proven to be excessively uneven, gapped or cracked, including the point at which the patio abutted

the adjacent deck stone surfaces. Nor was the overall installation of pavers adequately demonstrated to have resulted in an aesthetically unacceptable paver surface. Additionally, since the credible testimony indicated that the project undertaken by Respondent was 99% complete, no finding of any abandonment or even any constructive abandonment on the part of or attributable to Respondent would be supportable in this case.

11. Complainant’s testimony established a strong personal dissatisfaction with the extent and degree of surface variations in placement, consistency and unevenness, as well as with the present overall aesthetic appearance of the paver stone covered surface. Conversely, the testimony of the Respondent as well as of the Registrar’s assigned Inspector, both of whom were shown to have above-average experience and familiarity with viewing and evaluating construction standards, including surface stone applications, tended to show that the resulting appearance of most of the paver installation was well within acceptable tolerances prevailing in the industry, thereby confirming that, to the extent that some irregularities in the cutting or placement of abutting paver pieces may visibly exist, any such irregularities in most all of the locations, except for the few locations described above, were not excessive or uncommon according to comparisons with other installations. The Inspector’s testimony indicated that remedial measures were needed only at the few locations demonstrated to be excessively uneven or where excessive gapping or cracking existed, having determined that the rest of the installation did not fall below any applicable workmanship standards and did not warrant the undertaking and completing of complete replacement work or other forms of more widespread corrective measures.

12. It must be held, under all the evidence and testimony of record, that, irrespective of a high degree of personal dissatisfaction on the part of Complainant, he did not sustain his burden of proof, applicable in these administrative disciplinary proceedings, by sufficiently establishing that, apart from the relatively few locations

where further remedial work is found necessary, the present condition and appearance of the balance of the stone paver surface installed by Respondent was deficient or unacceptable according to prevailing industry standards and tolerances.

13. To impose an obligation upon a contractor to insure that the final appearance of its resulting construction work will meet a property owner’s own personal aesthetic standards would be an impractical and unduly onerous burden in view of the extremely high degree of subjectivity involved. The workmanship provisions of the State’s contracting laws were not intended to subject the license of any contractor to disciplinary action for failure to satisfy the individual tastes of all potential and actual customers.

14. The contractual installation work by Respondent encompassed over 3,000 square feet of surface area in and around Complainant’s rear yard. The quantum of proven deficiencies remaining uncorrected or improperly corrected by Respondent represented a significantly small portion of the overall installation work. Therefore, although it must be held that Respondent has not fully accomplished the correction of all of the items enumerated in the Inspector’s issued written directive, the additional imposition of any civil penalty against Respondent in the Registrar’s Order in this case is not warranted under all the circumstances.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) 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 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. 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)

2. While the overall resulting appearance of most all visible construction work will generally have some degree of an impact in the determination of what constitutes proper, acceptable workmanship, the Complainant in this administrative disciplinary case failed to sustain the requisite burden of proving by a preponderance of reliable, substantial and probative evidence that the overall appearance of the Respondent’s overall installed stone paver surface, except for a relatively small portion of such installation, was substandard and deficient to an extent that would adversely reflect upon Respondent’s workmanship or upon its discharge of applicable contracting law responsibilities.

3. With respect to the inconsistent placement of pavers around a column and at each side of a stairway, the radius of pavers placed above a stucco wall and the color of grout used between such top pavers during a corrective attempt, and a relatively few locations where excessive gaps, looseness or cracks still exist, the evidence of record sufficiently established that Respondent has violated the provisions contained in A.R.S.§32-1154(A)(23) and (3); namely, Rule R4-9-108, A.A.C. However, no violations by Respondent of A.R.S.§32-1154(A)(1) or (7) were adequately proven hereunder.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order, that Respondent’s Class K-05 license be provisionally suspended until the Registrar receives written proof that Respondent has accomplished appropriate

remedial work so as to rectify the deficiencies set forth in Findings of Fact Numbered 7 through 9, inclusive.

It is further recommended that if written proof is filed with the Registrar on or before this Order’s effective date indicating that Respondent has properly accomplished the corrective measures referred to above, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number 08-1869 shall be closed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Dated: March 17, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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