ALJDEC decisions subject to certification as final

10F-1192-ROC · Registrar of Contractors · 2010-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Thomas R. Martinez. ADMINISTRATIVE LAW JUDGE: M. Douglas

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

FINDINGS OF FACT

1. Respondent Palo Verde Shotcrete Inc. (Corp.) is the holder of License No. 059935, a Class C-09R License, issued by the Registrar of Contractors. 2. Credible testimony and evidence established that pursuant to the parties’ written construction agreement the Respondent performed shotcrete work on a swimming pool being constructed by the Complainant as an owner/builder. 3. There was no dispute that the Respondent utilized 18 yards of concrete material in its work on the Complainant’s swimming pool and that at the end of the Respondent’s construction work an equipment hose broke and that concrete material was inadvertently sprayed over portions of the Complainant’s residence and on the Complainant. 4. The Complainant then became very upset with the Respondent for the perceived additional concrete usage and with the concrete spray on his residence. 5. When the Complainant then observed the Respondent’s employees spraying water on the interior of his back porch apparently causing water damage to the back porch the Complainant instructed the Respondent to leave his property. 6. When the parties were unable to resolve their differences regarding the amount of concrete material utilized on the construction project the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 8. The Corrective Work Order provides, in pertinent part, as follows: The contractor should clean the concrete splatters from roof, walls and other surfaces where they exist by appropriate means. Since the contractor was not allowed to perform cleanup in a timely manner, he will not be held responsible for any discoloration that remains after the concrete is removed. It is this Inspector’s opinion that the Complainant owes Palo Verde Concrete Inc., the amount of $3,147.90. This amount reflects the cost of supply and placement of the concrete required to complete the pool. 9. Credible testimony and evidence established that the Respondent has performed most of the cleanup work specified in the Corrective Work Order but that the Corrective Work Order has not been fully complied with. 10. Credible testimony and evidence established that there is still unacceptable concrete splatter on several of the Complainant’s roof tiles and on the Complainant’s barbeque. The Respondent shall fully comply with the terms of the Corrective Work Order and properly remove the concrete splatter from the Complainant’s roof tile and the Complainant’s barbeque. 11. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems he has experienced with the construction of his new swimming pool are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent should be given a reasonable opportunity to complete necessary cleanup work on the Complainant’s roof and the Complainant’s barbeque. 12. Credible testimony and evidence established that the parties’’ written contract provides that the Respondent is to receive $125.00 per yard for any additional concrete material that might be required beyond the twelve yards of concrete set forth in the first page of the parties construction agreement.. 13. Credible testimony and evidence established that it is common in the swimming pool industry to utilize more concrete material on swimming pool applications than originally anticipated. 14. There was no credible evidence of any violation by the Respondent in the amount of concrete material utilized on the Complainant’s swimming pool. 15. There was no credible evidence that the Respondent failed to complete the construction project for the price stated in the parties’ contract. 16. Credible testimony and evidence established that the Complainant was required to pay a licensed electrician $343.41 to correct the damages inadvertently caused by the Respondent during its clean up efforts in the Complainant’s back porch area. The Respondent is found to be fully responsible for the cost of this repair. 17. Credible testimony and evidence established that the Respondent left a plastic child’s swimming pool partially filled with concrete in the Complainant’s yard and that the Complainant was charged $153.27 by Waste Management as a “dumping fee.” The Respondent is found to be fully responsible for the cost of this cleanup action.

CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent 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). 2. 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). 3. Proof by preponderance of evidence “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 Complainant failed to sustain his burden of proof to establish that the Respondent 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 of the charged provisions of A.R.S. § 32-1154A (9) (Failure in a material respect by the license to complete a construction project or operation for the price stated in the contract, or in any modification of the contract).

RECOMMENDed order In view of the foregoing, it is recommended that this matter shall 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 the Order will be 40 days from the date of the certification. Done this day, May 20, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to: William A. Mundell, Director Registrar of Contractors -----------------------

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