ALJDEC decisions subject to certification as final

2010A-308473499-ROC · Registrar of Contractors · 2011-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 20, 2011

APPEARANCES: Complainant appeared through its President Rick Cole; Respondent was represented by corporate Vice President Dennis Smith.

WITNESSES: Craig Williams, ROC Inspector Rick Cole Dennis Smith

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent TSR. The complaint concerns an irrigation system, asphalt roads, and concrete drainage ditch that Respondent built in the Twelve Oaks subdivision. Respondent denies all allegations. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar) into the record. The file includes a prior decision issued by the Registrar in a case between the same parties and discussing the same issues: Ricky Cole v. TSR Contracting, Inc., No. 09F- 3546-ROC (issued October 30, 2009). Administrative notice is taken of that decision. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violations. FINDINGS OF FACT 1. Respondent is the holder of license B-4.044784-R, a general residential engineering contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general residential construction. Dennis Smith is the company’s Vice President. 2. Complainant Ricky Cole is the President of Twelve Oaks Homeowners Association (“HOA”), which represents the homeowners of the Twelve Oaks subdivision. The HOA has brought a second complaint about the irrigation system installed in the subdivision by Respondent, as well as a few other issues. 3. The first complaint was brought in December 2008 and resulted in a final decision from the ROC in October 2009.[1] That decision found that Respondent completed and tested the irrigation system in February 2008 and that the system was working properly. After that, others came in and performed grading and weed-clearing work on the subdivision lots and damaged the irrigation system, especially the caps. The decision concluded that Respondent was not responsible for the damage and that Respondent was not required to do any further corrective work on the system. The decision also addressed a concrete drainage ditch built by Respondent. The decision found that the design of the ditch was flawed and that Respondent had no culpability for the flawed design. The decision was not appealed and is a final decision. 4. In June 2010, Complainant filed another complaint addressing the irrigation system, drainage ditch, and another issue.[2] ROC Inspector Craig Williams inspected the irrigation system again and found pipe leaks and missing caps. Inspector Williams issued a Corrective Work Order (“CWO”) that ordered correction of those items and correction of the drainage ditch, designated as item 4 of the CWO, which the Inspector found to have broken concrete on the sides of the ditch. 5. At hearing, Respondent raised the prior decision as a defense, arguing that the damage to the irrigation system was already found to be someone else’s fault. Respondent also argued that repairing the drainage ditch would be futile because until the design flaw is corrected, the ditch will continue to break and need correction. 6. The record shows that the parties have already litigated the damaged irrigation system in the prior case. The damage was found to be caused by persons other than Respondent. Therefore, Respondent has no more responsibility to correct the missing caps and pipe leaks of the irrigation system. Those items of the CWO (items 1 and 2) should be dismissed. 7. With regard to the drainage ditch, CWO item 4, the record shows that there is a design flaw in the drainage system that is not Respondent’s responsibility. No evidence was presented to show that the concrete work, which is Respondent’s only area of responsibility, fell below minimum workmanship standards. Without a workmanship violation, corrective work cannot be ordered. CWO item 4 should also be dismissed.[3] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(23), and (A)(3); namely A.A.C. R4-9- 108. Subsection (A)(2) requires contractors to build in accordance with plans, specifications, and building codes. Subsection (A)(23) requires contractors to comply with Corrective Work Orders. Subsection (A)(3), by way of A.A.C. R4-9-108, requires contractors to comply with minimum workmanship standards. 3. The evidence does not support finding a violation of subsection (A)(2). The evidence does not show that Respondent failed to follow plans, specifications, or building codes. 4. The evidence also does not show that Respondent is responsible for the damage to the irrigation system or that Respondent fell below workmanship standards with regard to the concrete drainage ditch. Therefore, there are no violations of subsections (A)(3) and (A)(23). RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against TSR Contracting, Inc. be dismissed.

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 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Even though the December 2008 complaint was brought by Rick Cole in his own name, it concerned the irrigation system and drainage of the entire subdivision. [2] That issue—asphalt repair (CWO item 3)—was corrected by the time of the hearing and was not addressed. [3] CWO item 5 was not pursued at hearing. Dennis Smith testified, without contradiction, that it had been corrected. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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