ALJDEC decisions subject to certification as final

09F-A0215-ROC · Registrar of Contractors · 2009-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 2009 at 1:15 p.m. APPEARANCES: Complainant Judy Gilbert appeared on her own and her husband LaMoin Gilbert’s behalf; Respondent Canyon State Concrete Inc. appeared through Coby Cook, its Vice President. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On June 6, 1988, the Registrar of Contractors issued License No. ROC078665, Class L-09 for commercial concrete to Respondent Canyon State Concrete, Inc., a corporation. On November 25, 2008, the Registrar received a complaint from Complainants LaMoin and Judy Gilbert against Respondent’s license, which alleged that the concrete foundation that Respondent constructed for the commercial building that Complainants were constructing was not in compliance with plans and specifications because it did not include any wire mesh or rebar where the plans required it. The Registrar referred the complaint to Respondent for its immediate attention. The Registrar’s Inspector John A. Prince performed a jobsite inspection and, on December 12, 2008, informed the parties that he had determined that the complaint should be closed because “[a]ll work was inspected and approved by the town of Camp Verde Community Development Department as per approved plans” and “[a] Certificate of Occupancy was issued on 11/06/2008.” On December 24, 2008, the Registrar received Complainants’ request for hearing because “the inspector did not properly inspect the foundation as per approved plans. The xrays will prove that he over looked the missing rebar and improper lengths placed in the foundation.” On April 30, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(2), (7), (3) (namely A.A.C. R4-9-108), and (13) (namely A.R.S. § 32-1124(B)). Respondent timely answered the complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. A hearing was held on October 5, 2009. Inspector Prince testified. Complainants presented the testimony of three witnesses: (1) William Ellison, who owned and had been trained to operate a Ground Penetrating Radar Machine; (2) Complainant Judy Gilbert; and (3) Complainant LaMoin Gilbert. Complainants also submitted three exhibits. Respondent presented the testimony of three witnesses: (1) Jay Parker, the Manager for Northern Arizona for Hanson Aggregates Inc. (“Hanson Aggregates”), which had supplied the concrete, rebar, and other hardware; (2) Dale Parrack, Respondent’s superintendent on the job; and (3) Ira Elmo (“Sonny”) Cook, Respondent’s Qualifying Party and President. Additional Hearing Evidence At the beginning of the hearing, Respondent admitted that it had violated A.R.S. § 32-1154(A)(13) because it had failed to put its license number preceded by the acronym “ROC” on its bid and contract form. It has since rectified the omission. Complainant LaMoin Gilbert acted as general contractor in the construction of a large metal commercial building[1] on land he owned in Camp Verde, Arizona. In January 2007, Complainants contracted with Respondent to provide labor to construct the concrete foundation for the commercial building according to Complainants’ plans. Respondent was not responsible for providing the materials. Instead, it allowed Complainants use its discount in ordering materials from supplier Hanson Aggregates. Complainant Mr. Gilbert testified that he understood that the plan required fiber mesh and that Respondent would use fiber mesh to construct the foundation. Hanson Aggregates’ manager Mr. Parker testified that fiber mesh is almost 100% profit for Hanson Aggregates. Mr. Parker had met with Mr. Gilbert and discussed the order. If Complainants had requested fiber mesh, Hanson Aggregates certainly would have supplied it. The plans for the building that Complainants submitted showed V-shaped rebar at intervals along the long sides of the concrete foundation. Complainants did not point out and the Administrative Law Judge was not able to see where the plan required fiber mesh. Hanson Aggregates delivered the materials that Complainants had ordered to the jobsite. Respondent sent its crew to lay the rebar and other hardware and construct the concrete forms for the foundation. Respondent’s crew did not place any fiber mesh across the foundation. Respondent’s job superintendent Mr. Parrack testified that Complainant Mr. Gilbert unlocked the gate to the jobsite every day and was constantly “looking over [Mr. Parrack’s] shoulder.” Mr. Parrack testified that Mr. Gilbert would have noticed before the pour if Respondent had not laid the rebar according to plan or had left out mesh or any other material required by the parties’ agreement. Inspector Prince testified that he went to the Town of Camp Verde’s offices to view the inspection report for the job. According to the inspection report, Respondent had laid the rebar and other hardware and had constructed the concrete forms according to the plan. After the preliminary foundation work passed the Town of Camp Verde’s inspection, Complainant Mr. Gilbert called Respondent’s president Mr. Cook and told him that the job was “ready to pour.” Respondent’s crew subsequently poured the foundation. On February 1, 2007, Complainants paid Respondent the full contract price of $62,892.90 for constructing the concrete foundation. Complainant Mrs. Gilbert testified that, after Complainants paid Respondent, they noticed that the foundation started to crack. Inspector Prince testified that he performed a prehearing jobsite inspection on September 21, 2009. Inspector Prince reported that “all the work was within workmanship standards . . . .” William Ellison is a construction superintendent for Reflection Builders Inc. Mr. Ellison had been in the military, where he was trained to operate a Ground Penetrating Radar Machine, which the military used to locate unexploded ordinance. Mr. Ellison had his own Ground Penetrating Radar Machine. He testified that he did not look at the plans with respect to the fiber mesh. He did look at the plans with respect to the V-shaped rebar. Mr. Ellison provided copies of the pictures of the foundation from the Ground Penetrating Radar Machine. Mr. Ellison testified that the pictures showed that there was no fiber mesh. Mr. Ellison testified that the pictures showed that the “hairpin rebar” was missing from the foundation in the front of the building. Mr. Ellison testified that, on the plans, the rebar had two 20’ legs at a 20° angle. The pictures showed that the foundation had two 10’ legs at a 120° angle. Operators of Ground Penetrating Radar Machines are not licensed by any state or federal agency. No studies or documentation was submitted to establish the efficacy of the Ground Penetrating Radar Marchine in establishing the presence or absence of metal components over which concrete has been poured. Mr. Ellison testified that a standard metal detector would confirm the results of the Ground Penetrating Radar Machine. Mr. Ellison charges $200 for a full scan and $50 for “a few more photos.” The Registrar’s record shows that Respondent’s license is current and in good standing and that this is the only complaint pending against the license. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[2] Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] “If a technique has an ‘enormous effect in resolving completely a matter in controversy,’ it must be demonstrably reliable before it is admissible.”[6] For a technique to be demonstrably reliable, it “‘must be generally accepted by the relevant scientific community.’”[7] “If the scientific principle has gained general acceptance in the particular field in which it belongs, evidence resulting from its application is admissible, ‘subject to a foundational showing that the expert was qualified, the technique was properly used, and the results were accurately recorded.’”[8] Mr. Ellison’s testimony was the only evidence of any departure from plans in the foundation that Respondent constructed. Complainants did not offer any evidence that the Ground Penetrating Radar Machine is an accepted method in any scientific community to determine the presence or absence of metal components over which concrete has been poured. Complainants did not offer any evidence, other than Mr. Ellison’s own testimony, that he is qualified to operate the Ground Penetrating Radar Machine, that the machine was functioning and properly calibrated, or that the results were accurately recorded. Mr. Ellison’s testimony alone is not sufficient to overcome Mr. Parrack’s testimony that the foundation was constructed according to plan and Mr. Prince’s testimony that the foundation passed the Town of Camp Verde’s inspection before Respondent poured the concrete. Complainants therefore have not borne their burden to establish that Respondent violated A.R.S. § 32-1154(A)(2),[9] (3),[10] or (7)[11] in its placement of rebar in the foundation. Respondent admitted that it did not place fiber mesh in the foundation. But Complainants have not established that the plans or the parties’ contract required Respondent to place fiber mesh in the foundation. Complainants therefore have not established that Respondent’s failure to place fiber mesh in the foundation violated A.R.S. § 32-1154(A)(2), (3), or (7). Respondent admitted that it violated A.R.S. § 32-1154(A)(13).[12] But its representative’s testimony that it has corrected this violation was credible and undisputed and Complainants did not claim that they were misled or harmed by this violation. In light of Respondent’s excellent record, no discipline is warranted. RECOMMENDED ORDER In view of the foregoing, on the effective date of the Registrar’s final order, it is recommended that the Registrar dismiss Complainants LaMoin and Judy Gilbert’s complaint in Case No. A09-0215 against Respondent Canyon State Concrete Inc.’s License No. ROC078665, Class L-09. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, October 9, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] According to the plans that Complainants submitted, the dimensions of the building were 80’ wide, 225’ long, and 16’ high. [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] State v. Superior Court, 149 Ariz. 269, 276-77, 718 P.2d 171, 178-79 (1986) (quoting M. Udall and J. Livermore, Law of Evidence § 102 (2d ed. 1982)). [7] Id., 149 Ariz. at 277, 718 P.2d at 179 (quoting Symposium on Science and Rules of Evidence, 99 F.R.D. 187, 189 (1989) (emphasis in original)). This so-called “Frye rule” of admissibility was modified by the United States Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 463 (1993). Because application of Daubert concerns the allocation of responsibility between the jury and judge in a judicial forum, it has no application to an administrative hearing, where the Administrative Law Judge determines the facts, based on her evaluation of witness credibility and qualifications, as well as legal conclusions. See Logerquest v. McVey, 196 Ariz. 470, 488 ¶ 54, 1 P.3d 113, 131 (2000). [8] State v. Superior Court, 149 Ariz. at 277, 718 P.2d at 179 (quoting State ex rel. Collins v. Superior Court, 132 Ariz. 180, 196, 644 P.2d 1266, 1282 (1984)). [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [12] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in any material respect to comply with this chapter.” The specific statute violated is A.R.S. § 32-1124(B), which requires that licensed contractors to include their license number, which “shall be preceded by the acronym ‘ROC,’“ on “all written bids submitted by the license and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.”

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