ALJDEC decisions subject to certification as final

2010A-8500064-ROC · Registrar of Contractors · 2010-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2010 APPEARANCES: The Complainant represented himself. Victor Petersen, President, appeared for the corporate Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. Pursuant to a contract between the parties, the Respondent constructed the Complainant’s home in Queen Creek, Arizona. 2. The Respondent’s subcontractor, Upgrade Concrete (Upgrade), installed the concrete slab and driveway for the garage that consists of a two car garage area and smaller garage area. 3. The Complainant moved into the home in approximately April of 2008. 4. The Complainant had an independent company place an epoxy coating on the garage floor. 5. After the installation of the epoxy floor coating, the Complainant became aware of water intrusion and ponding on the garage floor. 6. The Complainant contacted the Respondent regarding the water ponding issue, and Upgrade performed corrective work to grind down, fill in, and otherwise level the garage floor. Upgrade applied epoxy to the repaired floor with materials specified by the Complainant. 7. The Complainant was satisfied with Upgrade’s corrective work and signed off on it in May of 2009. 8. Subsequently, the Complainant perceived problems with variations in the epoxy color as well as continuing water ponding on the garage floor. The Complainant testified that water will penetrate up to four feet into the garage from the garage door. 9. On August 27, 2009, the Complainant filed a complaint against the Respondent with the Registrar to Contractors (ROC). 10. Upgrade hired a Class C-5 licensed contractor, 1 Stop Concrete Coating (1 Stop) to address the epoxy issue. 1 Stop was to perform some corrective work on the epoxy in October of 2009. The Complainant sent an e mail dated October 12, 2009 to the Respondent stating that the Respondent needed to provide storage and labor for removal of the contents of the garage. The Respondent decided to wait for the jobsite inspection and a possible Corrective Work Order (CWO) from ROC before proceeding. 11. On October 16, 2009, ROC Inspector Geoff Galgan (Galgan) performed a jobsite inspection. 12. On November 3, 2009 Galgan issued a CWO to the Respondent. The CWO required the Respondent to correct (match) the color and the finish of the epoxy coating on the concrete floor. Galgan concluded that the water ponding did not require additional work because it met ROC workmanship standards that require standing water not to exceed 3/32 of an inch 30 minutes after the flooding of the area. 13. Galgan testified that he used the width of two pennies to measure the water level on the floor after flooding it. The water level was approximately a penny and a half deep after 30 minutes. Evidence regarding the width of pennies was not confirmed, but the width of two pennies was asserted to be .119 of an inch or approximately 4/32 of an inch. The water depth measurement issue is inconclusive and, absent substantial evidence to the contrary, Galgan’s findings and conclusions on the depth of water issue are accepted.[1] 14. One Stop performed corrective work on the epoxy but the Complainant did not find it acceptable. One Stop was to perform additional corrective work on the epoxy in December of 2009. The work was not accomplished because, according to One Stop’s owner, the Complainant was ill. The Respondent has not required One Stop to perform additional corrective work on the epoxy because it makes no sense to perform the corrective work on the epoxy if, as a result of the instant hearing, the Respondent will be required to perform work on the underlying concrete in order to facilitate water drainage. 15. Galgan performed a prehearing inspection on May 17, 2010. He testified the epoxy still was not acceptable because of “bubbling” and coloration problems. 16. The Complainant disputes Galgan’s decision concerning the water ponding issue. The Complainant testified that during rainstorms water will penetrate up to four feet into the garage and remain in puddles. Photographic evidence and testimony by the Complainant’s father shows the driveway is approximately 5/16’s of an inch higher than the garage floor. The Complainant argued that this acts as a dam and keeps water from migrating out of the garage. The driveway and garage floor are separated by a control joint and Galgan testified that despite the raised driveway, water did leave the garage area after testing. [2]

17. The International Residential Code (IRC) adopted by Queen Creek provides that the garage floor “…shall be sloped to facilitate the movement of liquids to a drain or toward the main vehicle entry door”. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32-1154: (A)(2), material and prejudicial disregard of plans, specifications, or code; (A)(3)/A.A.C. R4-9-108 workmanship standards; and (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means that the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. There is no evidence of an (A)(2) violation with respect to the epoxy. However, there is little dispute that the epoxy requires correction. Although the Respondent did not install the original epoxy, the Respondent took on the responsibility after attempting corrections to the garage floor. Subsequent attempts by One Stop to correct the epoxy have not been successful. The violation of (A)(3)/A.A.C. R4-9-108 is chargeable against the Respondent on this issue. There is no violation of (A)(23) for the reason that is set forth in paragraph 14 of the Findings of Fact. 5. The questions surrounding the level of the garage floor and water remaining are only slightly more complex. According to Galgan, the floor meets ROC standards. According to the Complainant, the floor does not meet IRC/Queen Creek code requirements. The word “facilitate,” as used in the code, means “to make easier.” The American Heritage Dictionary, 2nd ed. (Boston: Houghton Mifflin Company, 1982). The code can therefore be read as follows “The area of the floor used for parking of …vehicles shall be sloped to make easier the movement of liquids to a drain or toward the main vehicle entry door.” The code language does not require the floor to pitch in such a way that all water exits and that the floor will necessarily self dry. The Complainant has not presented sufficient evidence to rebut the testimony of Galgan or show that the garage floor is in such a condition that it constitutes a violation of an applicable code or workmanship standard. There are no violations on this issue. 6. The epoxy floor coating requires appropriate corrective action. The following recommended order is contingent on the Complainant providing reasonable and timely access for the corrective work to be accomplished pursuant to the ROC Order in this case. Recommended Order Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Respondent VIP Construction Inc.’s Class B- license (No. 099261) shall be suspended until the ROC receives acceptable written proof that the Respondent has caused to be performed appropriate corrective work on the epoxy coating of the garage floor. If the ROC receives acceptable written proof that the Respondent has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and this matter shall be closed. 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, June 1, 2010.

/s/ Allen Reed Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The ROC inspector testified that he has four and a half years experience with ROC and 20 years of contracting experience. The inspector is presumed to be impartial. His findings and conclusions are entitled to weight and consideration unless shown to be incorrect or clearly unreliable. [2] With some water still remaining after 30 minutes.

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