ALJDEC decisions subject to certification as final

08F-T1211-ROC · Registrar of Contractors · 2009-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 2009; 9:00 a.m. APPEARANCES: Complainants Mr. Robert J. Miller and Ms. Jeanette L. Debuhr represented themselves. Complainant Eastwood Construction and Development Corporation failed to appear. Respondent Amark Construction, LLC was represented by Mr. James Melvin Slater, owner and Qualifying Party.

ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of these consolidated matters was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record and based on the entire record the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent Amark Construction, LLC is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona holding Class KB-01 License number 167539. 2. Complainants Mr. Robert J. Miller and Ms. Jeanette L. Debuhr are a married couple. These consolidated matters concern the construction of their Casa Grande, Arizona residence. Specifically, the Complaints concern the concrete work performed on the house. Respondent performed the concrete work at the residence. 3. Following construction of the subject home the concrete driveway raised creating a backflow of water into the garage. Also a sewer line in the kitchen area broke. 4. Complainants Mr. Miller and Ms. Debuhr filed Case No. T08-1211 against Respondent. Complainant Eastwood Construction and Development Company (“Eastwood”) was the general contractor and developer of the subdivision containing the Miller/Debuhr home. Eastwood filed a substantially similar Complaint against Respondent which is Case No. T08-1275. 5. The Complainants were assigned to Registrar of Contractors Inspector Frank Grochocki who conducted a job site inspection and as a result issued a written Corrective Work Order (CWO) to Respondent dated May 16, 2008. The CWO states that no action is required to fix the broken sewer line since the Inspector could not determine its cause or the responsible party. The Inspector assigned correction of the concrete driveway to the Respondent. Respondent did not consider itself responsible for the driveway raising. Respondent’s position has consistently been that Eastwood is responsible for fixing the problem. Respondent therefore did not perform any corrective work. 6. Citations and Complaints were issued by Registrar of Contractors. Respondent filed a Written Answer to the two Citations and Complaints. The matter was scheduled for hearing in the Office of Administrative Hearings. 7. Eastwood failed to appear at the hearing. Mr. Miller and Ms. Debuhr appeared and testified, as did Respondent’s owner and Qualifying Party Mr. James Melvin Slater. Inspector Grochocki also testified as to his inspection and issuance of the CWO. 8. Respondent stipulated that the problem and condition at the driveway and garage door area exists and does create the problem alleged by Complainant. However, Respondent assigns responsibility to Eastwood. 9. Respondent filed with its Written Answer a soils engineer’s report that provides substantial and credible evidence that the Complainant Eastwood failed to properly prepare the expansive soil construction site prior to construction of the house, including the pouring of the concrete. 10. Respondent also filed a copy of the subcontract it entered into with Eastwood which expressly excludes Respondent from risk and responsibility for problems cause due to expansive soils or other soils conditions. 11. There was no substantial evidence that the concrete poured by Respondent was defective or that the pour was defective. 12. The greater weight of evidence proved that the expansive soils condition was inadequately prepared for construction by Eastwood and that condition directly caused the raising of the driveway and the broken sewer line. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156, and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citations and Complaints with possible violations of A.R.S. § 32-1154.A.7, 23 and 3. 3. The greater weight of evidence proved that the problems with the broken sewer line and rising of the concrete driveway were directly caused by the Complainant Eastwood’s failure to prepare the expansive soils on the construction site and not by any poor concrete work by the Respondent. 4. Complainant Eastwood had the burden of proof by the standard of preponderance of the evidence in this case. A.A.C R2-19-119. Therefore, in addition to the lack of preponderance of evidence against Respondent produced at the administrative hearing, Eastwood as a Complainant is in default.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citations and Complaints T08-1211 and T08-1275 be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, April 17, 2009.

______________________________________ Grant Winston Administrative Law Judge

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

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

By __________________________ -----------------------

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