ALJDEC decisions subject to certification as final

10F-1426-ROC · Registrar of Contractors · 2010-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2010 at 8:00 a.m. APPEARANCES: Complainant Jim Tanner appeared on his own behalf; Respondent S C P Construction LLC appeared through Michael Thal, Esq., Lang, Baker & Klain, PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On January 7, 2002, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC171420, Class K-09 for concrete to Respondent S C P Construction LLC, a limited liability company. On October 14, 2009, the Registrar received a complaint against Respondent’s license from Complainant Jim Tanner that alleged certain deficiencies in the concrete work that Respondent had performed on the exterior of Complainant’s residence at 2435 N. 67th Ave. in Glendale, Arizona. The Registrar’s Inspector Jeff Wills performed a jobsite inspection and, on November 4, 2008, issued a Corrective Work Order (“CWO”) to Respondent to correct certain items of complaint within 15 days, in relevant part as follows: 1. Excessive cracking and separation in courtyard concrete:[1] This was pointed out by the Complainant at the time of the jobsite inspection to the inspector. It is the opinion of this inspector that the minor cracking of a 1/16” at the ‘tooled’ control joints is acceptable, however the compound cracking within the slab in this inspector’s opinion is excessive and should be corrected by the appropriate means.

2. Excessive cracking and separation in patio concrete: This was pointed out by the Complainant at the time of the jobsite inspection to the inspector. It is the opinion of this inspector that the compound cracking within this slab is excessive. It should also be noted that the extended patio in this same area has no control joints whatsoever and should also be corrected by the appropriate means.

3. Shoe print in concrete driveway: There is a jobsite agreement between the parties to correct by the appropriate means. These shoe prints as pointed out by the Complaint are in various locations throughout the flatwork.

4. Washboard uneven finish on patio parts of slab: This was pointed out by the Complainant at the time of the jobsite inspection at the back patio area. It is the opinion of this inspector that this does not meet Registrar of Contractors standards and should be corrected by the appropriate means.

5. Cracks in two sections of driveway upper area: At the time of the jobsite inspection, the Respondent did agree to make repairs to these areas. Per the Complainant at the time of the inspection, he does not want them repaired he wants these sections of concrete replaced. It is the opinion of this inspector that the offer of repair by the contractor is appropriate.

No action required by the contractor on the following items:

1. Two completely different colors on two major portions of concrete: As pointed out by the Complainant at the time of the inspection, there is an area or areas of the driveway concrete at the west end that ardex was used to coat or smooth out the concrete per the Respondent, some rough areas. These areas that the ardex was used . . . in this inspector’s opinion are slightly lighter in color than the surrounding concrete. It is also the opinion of this inspector that over time the lighter concrete will blend in with the surrounding concrete as the difference in color is not excessive.

2. Areas of concrete raised unfinished: It is the opinion of this inspector that the areas of concrete pointed out by the Complainant at the time of the jobsite inspection is [sic] acceptable.

3. Chips breaking off of areas of concrete: It is the opinion of this inspector that the areas of concrete pointed out by the Complainant at the time of the jobsite inspection is acceptable as the chips were contained within the control joints of the driveway and were relatively small and sporadic.

4. I am having a lab test the p.s.i. on the numerous areas: Per the Complainant at the time of the jobsite inspection, all tests came back ok.

[Emphases in original; footnote added.] On November 24, 2009, the Registrar received Complainant’s request that a citation be issued against Respondent’s license. On January 22, 2010, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(23) and (3) (namely A.A.C. R4-9-108). Respondent timely answered the Citation and Complaint, denying any statutory violation and affirmatively alleging that “one or more of the corrections ordered in this matter is inconsistent with accepted industry standards or tolerances, and conflicts with directives issued by Complainant, his agent(s) or representative(s) during the events giving rise to this Complaint.” The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A hearing was held on May 6, 2010. Inspector Wills testified. Complainant testified and submitted two exhibits. Respondent presented the testimony of four witnesses: (1) Marcos Achoa, its superintendent on the job; (2) Larry B. Stecker, its customer service supervisor, who was involved in Respondent’s response to Complainant’s complaint; (3) Doug Stecker, one of Respondent’s members, who became involved after Complainant filed the complaint to the Registrar; and (4) Jesse R. Wyatt, P.E., who testified as Respondent’s expert on concrete. Respondent also submitted 18 exhibits. Additional Hearing Evidence Corrected items Complainant did not dispute the items on which the CWO had not directed Respondent to perform corrective action. Inspector Wills had performed a prehearing jobsite inspection on May 5, 2010. Inspector Wills testified that Respondent had repaired, and Complainant had accepted repair of, the shoe print in the concrete driveway, which was Item No. 3 on the CWO. Inspector Wills testified that Respondent had repaired the cracks in two sections of the upper driveway, Item No. 5 on the CWO, but the cracks had reappeared. However, Inspector Wills testified that the cracks were currently within the Registrar’s standards, so no further corrective action was required with respect to this item. Complainant did not present any evidence at the hearing to dispute Inspector Wills’ testimony that the driveway required no further corrective action. The Compound Cracking on the Courtyard and Patio and the Washboard Uneven Finish on the Patio (CWO Items Nos. 1, 2, and 4)

The Registrar has issued four contractor’s licenses to Complainant Mr. Tanner dba Az Mex Contracting, a sole proprietor: (1) License No. ROC109888, Class C-48 for residential ceramic, plastic & metal tile; (2) License No. ROC213211, Class C-08 for residential floor covering; (3) License No. ROC157801, Class L-48 for commercial ceramic, plastic and metal tile; and (4) License No. ROC181170, Class C-30 for residential finish carpentry. The Registrar has also issued License No. ROC181170, Class C-30 for residential finish carpentry to Mr. Tanner dba West Coast Granite, a sole proprietor. Complainant acted as the general contractor in the construction of the custom home. Complainant intended to install natural stone or ceramic tile over the patio and courtyard slabs that Respondent poured. Inspector Wills testified that the prehearing jobsite inspection disclosed that nothing had been done to repair the excessive compound cracking on the courtyard concrete slab (CWO Item No. 1), the excessive compound cracking and lack of control joints in the patio concrete slab (CWO Item No. 2), and the washboard uneven finish on the patio (CWO Item No. 4). The cracks did not appear to have become any worse, and the slabs appeared to have mostly cured and stabilized. “Compound cracking” refers to Y-shaped cracks that do not follow control joints. Concrete will crack, which is why it is the generally accepted practice in the construction industry to install control joints every 8’ or 10’ to provide a place for the concrete to crack uniformly. The Registrar’s Workmanship Standards for Licensed Contractors (February 2009) states that the width of compound cracks in exterior slabs and patios should not exceed 1/16”. Inspector Willis admitted that none of the compound cracks exceeded 1/16”. Inspector Willis also admitted that the Workmanship Standards also states that vertical displacement on exterior slabs and patios should not exceed 1/8” and that the vertical displacement on the patio and courtyard slabs did not exceed this tolerance. Inspector Wills testified that the compound cracking on the patio and courtyard slabs might affect any tile that was laid over the slabs, although a slip sheet between the tiles and slab would help. Inspector Wills admitted that a rough finish on the slab was preferred by some tile layers because it allowed for better adhesion. However, he did not believe that the washboard finish was by design because the rest of the exterior slabs had a smooth finish. He admitted that, if tile were installed over the rough finish, the problem would be effectively concealed. Mr. Achoa candidly admitted that control joints on the patio had been overlooked. He had left for another job and Respondent’s crew had poured the patio slab without control joints. If he had remained, he would have made sure that the crew installed control joints on the patio. Respondent’s crew had been instructed to cover the control joints on the courtyard with mastic to eliminate voids, in preparation for laying tile. Complainant submitted a written report from Ralph Williamson, the Director of the southwest chapter of the Ceramic Tile Institute of America, dated November 18, 2009, which concluded with the following recommendation: It is my opinion that the concrete substrates both in the front and rear patios are not acceptable for a successful natural stone or ceramic tile installation because of excessive cracking. It is my opinion the front patio needs to be replaced per industry standards and the rear patio that is under roof should also be replaced. The rear patio that is not under roof [sic] saw cuts could be placed to allow expansion and contraction.

The reason for my opinion is the cracks are now showing some vertical raising and when the temperature reaches plus 105 degree’s [sic] in the summer and the concrete and ground expands from the heat this will cause more cracking.

Placing a crack isolation membrane over this type of substrate would not be recommended.

Complainant testified that he knew Mr. Williamson through Complainant’s tile contracting business. Complainant had asked for Mr. Williamson’s help after the dispute with Respondent over the concrete arose. Mr. Williamson did not testify at hearing. Complainant testified that, as a tile and flooring contractor with 25 years’ experience, he would not lay tile over the excessive compound cracks because the cracks would telegraph from the slabs to the tile. Complainant also testified that placing slip sheeting over all the cracks would cost a fortune. Mr. Wyatt worked for the Portland Cement Association for 17 years, where he performed research and development work involving cement. He has been a member of the American Concrete Institute for 52 years, as well as several other professional associations in Arizona. He has known Respondent’s members for 30 years. Mr. Wyatt prepared a report, which was dated November 30, 2009 and provided in relevant part as follows: It is understood that the courtyard and rear patio are to be covered with ceramic tile or stone. Therefore these slabs will not be exposed and corrective action is not required in this case. It is well established that reflective cracks can develop over joints or cracks in the concrete slab. Reflective cracks are caused by thermal movement due to cycles of heating and cooling and the different coefficients of thermal expansion between concrete, ceramic tile and some stone. Knowledge-able tile and stone installers should be aware of this risk and take steps to minimize the risk of reflective cracking. The generally accepted method to minimize reflective cracking is to install slip sheets over joints or cracks in slabs prior to installing the tile or stone. This is the tile and stone installers responsibility and not the Concrete Contractors responsibility.

[C]losely spaced joints are recommended to minimize the risk of random cracking in a concrete slab on grade. However, it is not possible to prevent all cracking due to normal drying shrinkage or thermal stresses. There are two options. Cut the closely spaced control joints and deal with the risk of reflective cracking from a large number of joints, or allow some random cracks and deal with those. Either way, the tile installer must take the necessary steps to minimize reflective cracking. Apparently the Owner and Architect want the concrete slabs removed. This would be counterproductive. Removing the existing concrete presents a risk of damage to the existing construction. Further, if the concrete is placed using the same design, the same results are sure to develop. Changing the design would relieve the Concrete Contractor of any responsibility for the existing work.

Mr. Wyatt testified consistently with his report. He does not believe that Respondent should be required to replace the concrete, which he testified would result in economic waste. Mr. Wyatt testified that although use of slip sheets did not guarantee that reflective cracks would not occur, slip sheets prevented reflective cracks in “the vast majority of cases.” According to the Registrar’s record, Respondent’s license is current and in good standing. This is the only complaint against the license on the current record. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 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.”[6] Because of the tendency of concrete to crack, most of the Registrar’s Workmanship Standards for Licensed Contractors relating to concrete refer to permissible widths of cracks and vertical displacement. However, contractors are also required to achieve “proper placement in a good and workmanlike manner to achieve appearance and function of the finished product.”[7] Inspector Wills credibly testified that the compound cracks in the patio and courtyard were excessive, that the patio should have had control joints, and did not, and that the rough washboard finish on the patio should match the finish on the rest of the exterior concrete. Mr. Wyatt and Respondent’s other witnesses did not disagree with these conclusions, but only with the preferred method of repair in light of Complainant’s intention to install tile over the exterior concrete slabs. Therefore, Complainant has borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(3)[8] and (23)[9] in the following respects: (1) the excessive compound cracks in the courtyard; (2) the excessive compound cracks in the patio; (3) the lack of control joints in the patio; and (4) the washboard uneven finish on the patio parts of the slab. No evidence was offered on the cost to remedy these workmanship deficiencies. The doctrine of economic waste does not allow a contractor to make a following contractor responsible for the first contractor’s preparation of an inadequate surface. Respondent was required to construct the slabs in a professional and workmanlike manner, regardless of the homeowner/general contractor’s plans for the slabs, absent a clear written disclaimer to the contrary signed by the homeowner/general contractor. Because the compound cracks and vertical displacement do not exceed applicable standards, Respondent is not absolutely required to replace the slabs. As a contractor whose license is current and in good standing, Respondent is presumed to have the expertise to correct workmanship deficiencies in a professional and workmanlike manner. Complainant cannot require Respondent to remove and replace the courtyard and patio slabs. However, Respondent must provide a two-year warranty for any corrective work it performs.[10] RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent S C P Construction LLC’s License No. ROC171420, Class K-09 until Respondent corrects the workmanship deficiencies that were established in this case. It is further recommended that the Registrar not suspend Respondent’s license and should instead close the complaint in Case No. 10-1426 if, on or before the effective date of the Registrar’s final order, Respondent provides documentary proof, acceptable to the Registrar, that it has corrected in a professional and workmanlike manner, or otherwise resolved Complainant’s complaints regarding, the workmanship deficiencies established in this case, to wit: (1) the excessive compound cracks in the courtyard; (2) the excessive compound cracks in the patio; (3) the lack of control joints in the patio; and (4) the washboard uneven finish on the patio parts of the slab. Done this day, May 19, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Inspector Wills’ CWO quoted and underlined the original complaint at the beginning of each enumerated item of complaint. [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) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] Workmanship Standards for Licensed Contractors at 8. [8] 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.” [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [10] The parties are free to enter into an agreement to avoid the risk to Respondent of causing collateral damaged through its repairs and to reduce the cost to Complainant of laying tile on the excessively cracked courtyard and patio slabs.

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