ALJDEC decisions subject to certification as final

08F-S0229-ROC · Registrar of Contractors · 2009-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 7, 2009 and September 11, 2009 at 8:00 a.m. APPEARANCES: The Complainants appeared through Wayne Coates. Respondent Cobblestone Building and Development Incorporated (Corp.) (“Cobblestone”) appeared through its authorized representative, Bud Towle. Respondent Ron’s Concrete Construction Inc. (Corp.) (“Ron’s Concrete”) appeared through its attorney, Patric E. Durazzo. . ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT 1. Respondent Cobblestone Building and Development Incorporated (Corp.) is the holder of a Class B- License issued by the Registrar of Contractors. 2. Respondent Ron’s Concrete Construction Inc. (Corp.) is the holder of a Class B- License issued by the Registrar of Contractors. 3. This is a residential matter where Cobblestone constructed a new custom residence for the Complainants. Respondent Ron’s Concrete was the concrete subcontractor for the construction project. . 4. The Complainants were dissatisfied with the concrete work in their new residence and filed formal complaints against both of the Respondents with the Registrar of Contractors. 5. Both complaints provide in part as follows: STATE ITEMIZED COMPLAINT BELOW. 1. Large cracks in concrete floors of porches. 2. Uneven heaving of porch floors. 3. One large crack and several smaller cracks inside house in post- tension floor. 6. Pursuant to the filing of the formal complaints, an assigned Agency Inspector conducted an on-site inspection and issued written Corrective Work Orders directing both of the Respondents to perform designated corrective work on the Complainant’s residence. 7. Both of the Corrective Work Orders provide, in pertinent part, as follows: Contractor to correct the following by appropriate means: 1. Large crack in concrete floors porches (“porch floors”): There are several cracks that do not meet the workmanship standards. 2. Uneven heaving of porch floors: Several areas of the concrete have heaving that does not meet the workmanship standards. 3. One large crack and several small cracks inside house: There are several cracks that do not meet the workmanship standards. 8. Credible testimony and evidence established that the terms and conditions of the Corrective Work Orders were not complied with. 9. Credible testimony and evidence established that the concrete porch floors and concrete post-tension slab in the Complainants’ residence display unacceptable cracking and require appropriate correction. 10. There was no dispute that the failed concrete was not installed in accordance with the recommendations of a licensed soils engineer’s report. 11. Respondent Cobblestone asserts that the Complainants failed to disclose that a soils report had been obtained. 12. Credible testimony and evidence established that Respondent Cobblestone had notice of the existence of the soils report and failed to follow the recommendations therein. 13. There was no dispute that an in-floor heating system was installed in the Complainants’ post-tension floor. 14. Credible testimony and evidence established Respondent Ron’s Concrete required the Complainants and Respondent Cobblestone to sign waivers regarding Ron’s Concrete work on the post-tension floor because of the presence of the tubing in the concrete. 15. The waivers were knowingly and voluntarily signed by the Complainants and Respondent Cobblestone. The waivers specifically release Respondent Ron’s Concrete for any liability for cracking in the post-tension concrete slab. 16. There was no credible evidence that Ron’s Concrete either knew or should have known of the existence of a soils report for the Complainants’ property. 17. The credible evidence of record is insufficient and fails to support a finding that Respondent Ron’s Concrete is responsible for the correction of the concrete cracking in the post-tension floor and the concrete porch floors in the Complainants’ residence. 18. Respondent Cobblestone’s actions, in failing to follow the recommendations set forth in the soils engineer’s report and in failing to perform its work in a professional and workmanlike manner and in failing to comply with the terms and conditions of a written Corrective Work Order are found to constitute a wrongful act. 19. Notice is taken of the prior License record of Respondent Cobblestone with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by Respondent Cobblestone of the provisions of A.R.S. § 32-1154: (A)(7) (Wrongful Act); (A)(23) (Failure to take appropriate corrective action); and (A)(3), namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. The Complainant has the burden of demonstrating by a preponderance of the evidence that Respondent Ron’s Concrete violated the charged sections of the State’s Contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 3. 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). 4. The Complainants failed to sustain their burden of proof to establish that Respondent Ron’s Concrete violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent Ron’s Concrete of the provisions of A.R.S. §32-1154A, as charged in the Citation and Complaint.

RECOMMENDed orders In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Class B- License of Cobblestone Building and Development Incorporated (Inc.) shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if Respondent Cobblestone Building and Development Incorporated (Inc.) properly accomplishes the above described corrective action on or before the effective date of this Order then the above provided License suspension shall not take place and this matter be closed. In view of the foregoing it is recommended that the complaint and citation against Respondent Ron’s Concrete Construction Inc. (Corp.) be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, September 16, 2009.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com