ALJDEC decisions subject to certification as final

09F-T0519-ROC · Registrar of Contractors · 2010-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2010 APPEARANCES: Max Rupp appeared personally. D R H Southwest Construction, Inc. was represented by its attorney, Bob Coltin, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. D R H Southwest Construction, Inc. (“Respondent”) is the holder of License No. 167302, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”). 2. Max Rupp (“Complainant”) purchased a residence constructed by Respondent, which is located at 1746 E. Primera Dr., Casa Grande, Arizona. 3. On November 5, 2008, Complainant filed a written Complaint with the Registrar alleging the following Complaint items attributable to Respondent’s workmanship: 1. Remove contaminated soil & replace with good soil 4”-6” inches [sic] 2. Repair damaged foundation 3. Repair – replace edge of driveway 4. Repair – replace edge of sidewalks 5. Replace damaged concrete blocks in walls

4. The Registrar designated Complainant’s Complaint as Case No. T09-0519. 5. The Registrar issued a Citation and Complaint in Case No. T09-0519 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. 6. The Registrar forwarded Case No. T09-0519 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. At the commencement of the hearing, Complainant stated that Complaint items numbered 3 and 4 have been resolved. Complainant contends that Complaint items numbered 1, 2, and 5 are unresolved. 8. In response to the filed Complaint, the Registrar’s assigned inspector, Frank Grochocki, performed a jobsite inspection to view Respondent’s allegedly deficient workmanship. As a result of that inspection, Inspector Grochocki issued a Corrective Work Order, which required Respondent to perform appropriate remedial work to Complaint items numbered 2, 3, 4, and 5. 9. Inspector Grochocki did not require Respondent to perform any remedial work to Complaint item number 1. 10. At the hearing, Complainant failed to present credible evidence to support his contention regarding Complaint item number 1. 11. Rick McDowell is Respondent’s Vice-President of Construction. 12. In February of 2009, Mr. McDowell went to Complainant’s residence and inspected Complainant’s block fence and foundation slab. Terry Walker, who serves in Respondent’s customer service department, also was present at that inspection. 13. During the February 2009 jobsite meeting, Complainant greeted Mr. McDowell and Mr. Walker while holding a crow bar in his hand, which he shook in front of Mr. McDowell’s face. Complainant’s wife eventually took the crow bar from Complainant. Complainant’s actions were not justified and created a hostile environment during the jobsite inspection. 14. Respondent determined that the following remedial work should be performed to Complainant’s fence: pull grade back from the fence; patch visible stain; paint; and then backfill with positive flow away from fence. 15. On February 26, 2009, Respondent issued a work order requesting that Bretstar, Inc. perform the following work at Complainant’s residence: Please prep and paint the stemwall on the east and north sides of the house. Prep. and paint the inside of the fence on the west, north and east sides.

16. Respondent’s business records contain the following notation concerning the above-described work order: The homeowner would not let the fence be painted. He is insisting that it be patched first. There were no notes from our initial meeting with Rick McDowell, Terry Walker and Mr. Rupp as the fence needed to be patched.

17. On May 12, 2009, Respondent issued a work order to Aspen Block, L.L.C. requesting that the following scope of work be performed at Complainant’s residence: “Please move the rock back away from the inside of the fence in the back yard and patch as needed.” 18. Respondent’s business records reflect the following notation concerning Respondent’s work order to Aspen Block, L.L.C.: Aspen Fence went to patch today 5/13/09 and the homeowner would not let them do their work. He was very belligerent with Tom Rowe of Aspen Block. Per Bob Allen, the homeowner would not let the fence be painted on 5/12/09 since he said he wanted it patched first. He is now threatening to call the R.O.C. Mr. Rupp called the office and asked that all work be cancelled since he will be out of town for ten days. I have left a message for him to call and advise a date when he is ready to reschedule. Left message on 5/19/09 at 9:58 AM.

19. In May 2009, Complainant denied Respondent reasonable access to perform remedial repairs. 20. Mr. McDowell credibly testified that Respondent had cleaned off Complainant’s exterior foundation and applied a Radon product to seal the foundation. He opined that Respondent performed an appropriate repair to the foundation. 21. Complainant failed to present any credible evidence supporting his contention that the foundation has not been properly repaired. 22. On January 6, 2010, a prehearing jobsite inspection was performed by Inspector Grochocki. [1] 23. By letter dated January 20, 2010 to Complainant, Mr. McDowell confirmed that Complainant indicated his willingness to allow Respondent to complete repairs during the January 6, 2010, prehearing jobsite inspection, and that Mr. McDowell agreed to provide Complainant with a proposal of Respondent’s proposed remedial work. Respondent proposed the following scope of remedial work: 1. We will complete the patch work on the lower part of the fence block in your backyard. 2. We will paint the repaired areas. 3. We will confirm the drainage of the subgrade by racking back landscape rock and establishing a swale running away from the fence and house. 4. We will confirm or establish a positive grade running from the rear yard out to the street.

24. Mr. McDowell’s January 20, 2010 letter also informed Complainant that “Metro Fence has confirmed that your wall is structurally sound.” 25. Tom Rowe, Metro Fence Co., Inc.’s general manager, sent Mr. McDowell the following undated written assessment of Complainant’s wall: On January 13, 2010 I was called out to inspect the wall located at 1746 E. Primera Dr. There was a concern of integrity. After observing the wall it is my opinion after drilling test holes, the wall is sound. The wall is grouted ever 4’ Ft. [sic] On center, there are no signs of failure. Please let me know if I can be of further assistance.

26. Heather Hespeler is a senior geotechnical engineer employed by Ninyo and Moore, an engineering firm. 27. Ms. Hespeler is familiar with sulfates. She testified that soils contain sulfates, which can attack concrete. The process involves moisture wicking up through material with water. Water then evaporates and leaves salt, a condition known as efflorescence. Deterioration of concrete is the result of a physical action rather than a chemical action. Ms. Hespeler opined that the use of an encapsulate product at the affected areas, such as a Radon sealant, is the proper method of repair. 28. Ms. Hespeler opined that Respondent’s use of the Radon sealant was an acceptable repair method. 29. Ms. Hespeler further concluded that the appearance of efflorescence is common. 30. Complainant is found to have unreasonably denied Respondent the access needed to complete the remaining remedial repairs required by the Registrar’s Corrective Work Order. 31. The evidence of record supports a finding that Respondent complied with the Registrar’s Corrective Work Order to perform remedial repairs to Complaint Items numbers 2, 3, and 4. 32. Respondent’s completion of repairs is contingent upon not only reasonable access from Complainant, but also upon Complainant refraining from any further belligerent or hostile conduct towards Respondent and its subcontractors. Any such future conduct by Complainant may be grounds to excuse Respondent’s requirement to perform and complete such repairs. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. However, a strong matter in mitigation of this violation is Complainant’s unreasonably hostile behavior to Respondent and its subcontractors, and Complainant’s denial of reasonable access to perform remedial repairs to its deficient workmanship. 4. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent unreasonably denied Complainant access needed to complete the remaining remedial repairs. The above Findings of Fact support this conclusion. 5. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as charged in the Citation and Complaint issued by the Registrar. Complainant failed to establish that Respondent substantially injured him. RECOMMENDED ORDER Respondent’s License No. 167302 shall be suspended on the effective date of the Order entered in Case No. T09-0519 until Respondent provides the Registrar with written proof that it has completed repairs to Complaint item number 5 to workmanship standards, and the Registrar approves such proof of compliance. If Respondent provides the Registrar with written proof that it has completed repairs to Complaint item number 5 to workmanship standards on or before the effective date of the Order entered in Case No. T09-0519, and the Registrar approves such proof of compliance, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. T09-0519 shall be closed. If Complainant fails to provide Respondent with reasonable access to his property necessary to perform and complete the above-described remedial work and/or conducts himself in a belligerent and hostile manner to Respondent and/or its subcontractors while performing or attempting to perform the remedial work, then the condition requiring Respondent’s remedial work as a condition to avoid discipline may be excused. 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 40 days from the date of that certification.

Done this day, February 11, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Neither party requested the inspector to testify at the hearing.

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

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