ALJDEC decisions subject to certification as final

2010A-308475121-ROC · Registrar of Contractors · 2011-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 2011 APPEARANCES: Robert J. Paone appeared personally. Imagine Architectural Concrete, L.L.C. was represented by its attorney, Richard Klauer, 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. Imagine Architectural Concrete, L.L.C. (“Respondent”) is the holder of License No. 201920, a Class K-9 contracting license issued by the Registrar of Contractors (“Registrar”). 2. In September 2008, Robert J. and Kimberly M. Paone (“Complainants”) contracted with Respondent for Respondent to perform concrete work adjacent to Complainants’ swimming pool. 3. On August 12, 2010, Complainants filed a written Complaint with the Registrar alleging the following workmanship deficiencies with Respondent’s work: On patio there are chips and cracks that need [to be] repaired.

The concrete and cool deck raised & cracked a ½ inch or more around the play area probably 12 feet or more long above the tile in the pool.

Also the concrete looks buckled near the skimmer area.

4. The Registrar designated Complainants’ Complaint as Case No. 2010- [number redacted]. 5. In response to the filed Complaint, the Registrar’s assigned inspector, Jim Dimond, performed a jobsite inspection to view the three complaint items. Inspector Dimond concluded that the first complaint item had been repaired by Respondent to workmanship standards. The inspector determined that the second complaint item had been repaired by another contractor. Inspector Dimond determined that there were no deficiencies in the third complaint item. 6. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108. 7. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. Art Johannsen served as Complainants’ consultant for their swimming pool and patio project. Mr. Johannsen received compensation for his consulting services. However, he is not a licensed contractor. Mr. Johannsen is a retired Captain in the Phoenix Fire Department. 9. Mr. Johannsen supervised the contractors on the project. He also drew the drawing for the project. 10. Respondent faxed its bid to Mr. Johannsen at his request. 11. Mr. Johannsen performed work for Complainants that required contracting licensure, as defined in A.R.S. §32-1101(B).[1] Therefore, very little weight is given to his testimony on technical issues. 12. Inspector Dimond’s findings are supported by the evidence of record. 13. Complainants’ practice of soaking the grass adjacent to the concrete patio with a garden hose on a daily basis causes the ground to absorb large quantities of water.[2] During a jobsite visit, one of Respondent’s employees was able to put his arm between the edge of the grass and the concrete patio and submerge his arm in the ground to a point underneath the slab due to the moisture in the soil. 14. Complainants’ practice of flood irrigation of their grass lawn is the most likely cause of any movement of the adjacent concrete slab, rather than any deficiency in Respondent’s workmanship. 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), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainants failed to sustain their burden of proving that 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. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-[number redacted] shall be dismissed on the effective date of the Order entered in this matter. 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, March 9, 2011. /s/ Brian Brendan Tully Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] “’Contractor’ includes….consultants representing themselves as having the ability to supervise or manage a construction project for the benefit of the property owner including the hiring and firing of specialty contractors, the scheduling of work on the project and the selection and purchasing of construction material.” [2] Complainants do not have a sprinkler system for their backyard grass.

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

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