ALJDEC decisions subject to certification as final

2010A-3886166-ROC · Registrar of Contractors · 2013-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2013, at 8:00 a.m. APPEARANCES: Valley Oasis Pools and Spa’s Construction Co Inc (hereinafter “Complainant”) appeared through its corporate officer, Kathleen Alice Spacone. Eurotech Decorative Concrete LLC (hereinafter “Eurotech”) appeared through its qualifying party, Ljeka Camaj. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made: FINDINGS OF FACT 1. Eurotech is the holder of License No. C-9.230315-R issued by the Registrar of Contractors. 2. Complainant is the holder of License No. B-5.139068-R issued by the Registrar of Contractors. 3. This is a residential matter where Eurotech contracted to install a concrete overlay on an existing swimming pool deck that Complainant was remodeling for the homeowner. 4. Complainant and the homeowner were dissatisfied with Eurotech’s work and Eurotech’s failure to complete the agreed-upon construction project. Complainant contacted Eurotech and requested that it take appropriate action to properly complete the construction project. 5. When Eurotech failed to comply with Complainant’s repeated requests that Eurotech properly correct and complete its construction work, Complainant filed a formal Complaint against Eurotech with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Greg Koenoman, conducted an onsite inspection. Inspector Koenoman issued a written Corrective Work Order on March 8, 2010, directing Eurotech to perform designated corrective work on the swimming pool at issue. 7. The Corrective Work Order provided, in pertinent part, as follows: Pursuant to our recent investigation of this complaint and based on the facts before the agency at this time, the following action must be taken no later than 15 calendar days from the date of this letter. ….

1. Complaint: “The pool deck in rear of home is not finished. Repairs started but not finished.” 2. Complaint: “Prep work not completed.” 3. Complaint: “[N]ew textured overlay not completed.”

The contractor is to complete the project according to the jobsite inspection agreement and all written and verbal contract agreements.

8. When Eurotech failed to fully comply with the terms of the Corrective Work Order within the 15 days provided in the Corrective Work Order, the homeowner threatened to file a complaint against Complainant with the Registrar of Contractors. In order to avoid having a complaint filed against Complainant’s contractor’s license, Complainant caused an alternative contractor to perform the directed corrective work on or about March 26, 2010. No further corrective action on the swimming pool is necessary. 9. Kathleen Alice Spacone (hereinafter “Ms. Spacone”) testified that Eurotech was hired to install a concrete overlay on an existing swimming pool. Ms. Spacone stated that Eurotech failed to complete its construction work despite having an extended period of time to do so. Ms. Spacone stated that Eurotech failed to perform any construction work on the concrete overlay within the 15-day time period set forth in the Corrective Work Order. Ms. Spacone testified that the homeowner was “livid” over the unsatisfactory condition of Eurotech’s concrete overlay work and that when the 15-day period set forth in the Corrective Work Order expired, Complainant retained Robert L. Davies of Backyard Boulders LLC (License No. B.204381-R) to perform the corrective action directed in the Corrective Work Order. Ms. Spacone testified that Complainant hired Eurotech on January 19, 2009, to complete the construction project. Ms. Spacone stated that Eurotech agreed to complete the construction project within two months. Ms. Spacone testified that Eurotech had over a year to complete the construction project and failed to do so despite being given repeated opportunities.[1] 10. Ms. Spacone’s testimony is found to be credible. 11. Robert L. Davies (hereinafter “Mr. Davies”) testified that he was asked to look at Eurotech’s work on the swimming pool deck by the manufacturer of the concrete overlay material. Mr. Davies stated that he was the owner of Backyard Builders LLC and had been applying the manufacturer’s concrete overlay material to swimming pool decks for approximately ten years. Mr. Davies stated that Eurotech failed to comply with the manufacturer’s recommendations and improperly applied the concrete material over concrete cracks and control joints. Mr. Davies testified that Backyard Builders LLC was then hired by Complainant to perform the corrective action required by the Corrective Work Order. Mr. Davies stated that a large part of Eurotech’s construction work had to be removed and replaced. Mr. Davies testified that he took photographs of the cracks in the decking and that he had “never seen such a poor job.”[2] 12. Eurotech’s qualifying party, Ljeka Camaj (hereinafter “Mr. Camaj”), testified that Eurotech was unable to complete the corrective action within the 15-day period set forth in the Corrective Work Order because of interference from Ms. Spacone. Mr. Camaj stated that Ms. Spacone “threw” Eurotech off the job after the end of the 15-day period set forth in the Corrective Work Order. Mr. Camaj testified that he had received Corrective Work Orders before and that he had fully complied with all of them after the 15-day period had expired. Mr. Camaj stated that Complainant had denied Eurotech access by retaining another contractor to comply with the terms of the Corrective Work Order. Mr. Camaj acknowledged that he had informed Complainant that the corrective work would be completed within six or seven days. Mr. Camaj testified that the homeowner informed him that he could have more than the 15-day time period in the Corrective Work Order so long as the corrective action was completed within 30 days. Mr. Camaj stated that he had three or four more days of work “to complete the job.”[3] 13. There was no credible evidence that Complainant unreasonably interfered with or prevented Eurotech’s efforts to comply with the Corrective Work Order during the time period provided in the Corrective Work Order. 14. Ms. Spacone testified that the manufacturer recommended that the entire concrete surface applied by Eurotech be removed and that a new concrete surface be properly applied. Ms. Spacone stated Eurotech started the construction project in March 2009. Ms. Spacone testified that in March 2010, she could no longer delay the completion of the construction project because the homeowner was prepared to file a complaint against her contractor’s license with the Registrar of Contractors. Ms. Spacone stated that Eurotech failed to complete the corrective action required by the Corrective Work Order within 15 days and that on the eighteenth day, she informed Eurotech that she was retaining an alternative contractor to correct Eurotech’s concrete work and to properly complete the construction project.[4] 15. Complainant’s actions in causing an alternative contractor to complete the construction project when Eurotech failed to comply with the terms of the Corrective Work Order within the 15-day time period set forth in the Corrective Work Order were shown to be reasonable and justified under the circumstances. 16. Administrative notice is taken of Eurotech’s prior license record as reflected on the Registrar of Contractors’ public website on January 22, 2013. Such prior license record reflects that License No. C-9.230315-R of Eurotech is current. License No. C-9.230315-R of Eurotech was suspended for lack of bond from October 20, 2012, through November 19, 2012, suspended for lack of bond from April 13, 2012 through May 4, 2012, suspended for lack of bond from October 25, 2010, through October 29, 2010, and suspended for lack of bond from June 1, 2009, through August 6, 2009. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Eurotech entered into a construction agreement with Complainant to install the new concrete overlay on the existing swimming pool on January 19, 2009. Eurotech agreed to complete the construction project within two months of January 29, 2009. The construction project was not completed until Complainant retained an alternative contractor to properly complete the construction project on or about March 26, 2010. This Tribunal concludes that Eurotech violated the charged provision of A.R.S. § 32-1154(A)(1).[5] 4. Eurotech failed to perform its construction work in accordance with the manufacturer’s recommendations and failed to complete the construction project in a professional and workmanlike manner despite having over one year to complete the construction project. A large part of the construction work performed by Eurotech had to be removed and replaced by an alternative contractor. This Tribunal concludes that Eurotech violated the charged provision of A.R.S. § 32-1154(!)(3),[6] namely A.A.C. R4-9-108.[7] 5. Eurtotech failed to fully comply with the terms of the Corrective Work Order within the 15-day period set forth in the Corrective Work Order. There was no credible evidence that Eurotech requested an extension of time to comply with the terms of the Corrective Work Order. This Tribunal concludes that Eurotech violated the charged provision of A.R.S. § 32- 1154(A)(23).[8] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C-9.230315-R Eurotech shall be suspended for a period of twenty (20) days followed by one hundred and twenty (120) days of disciplinary probation. It is further recommended, in addition to the above-provided penalties, if any, that Eurotech pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Eurotech to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Eurotech’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Eurotech, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, January 25, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/913 Hearing Record (hereinafter “H.R.”) at 2:30-8:47.

[2] H.R. at 8:51-16:49. [3] H.R. at 17:20-39:43. [4] H.R. at 39:38-59:06. [5] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal [6] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [7] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[8] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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

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