ALJDEC decisions subject to certification as final

2011A-2764-ROC · Registrar of Contractors · 2012-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2012

APPEARANCES: Complainant appeared through its Secretary/Treasurer Nick Marchese; Respondent was represented by its President Theron Russell and its Qualifying Party CC Russell.

WITNESSES: Mark Alyea, ROC Inspector Nick Marchese Theron Russell CC Russell

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant, a condominium association, originally brought this action claiming poor workmanship by Respondent when Respondent repaved the side street “driveway” that runs down the edge of the property and leads from parking areas for the condominiums to Bethany Home Road in Phoenix, Arizona. At the start of the hearing on January 4, 2012, after opening statements were made, the parties agreed to amend the Citation and Complaint in this matter to allege failure to comply with contract specifications rather than poor workmanship. Respondent denies the allegation. The case centers on interpretation of the contract phase “grade for drainage.” This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including Exhibits A (17 photographs) and B (8 photographs) from Complainant, and testimony from the witnesses listed above 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 violation. FINDINGS OF FACT 1. Respondent is the holder of license A-14.155205-C, a commercial engineering contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform asphalt paving and fine grading. CC Russell is the Qualifying Party. 2. In May 2010, Complainant hired Respondent to re-pave parking areas and a “driveway” on the condominium property. The driveway was old and had numerous cracks and potholes in it. The parties agreed that Respondent was to re-pave it without making any other changes to it. They entered into a written contract. One of the specifications of the work was that the driveway was to be “grade[d] for drainage.” The work was completed and Complainant has no issue with the quality of the asphalt or the installation in general, only with the way Respondent did its work in one area close to Nick Marchese’s condo. 3. Mr. Marchese testified that the old road edge abutted the edge of the sidewalk by his condo and was 1-2 inches lower than the edge of the sidewalk. This created a lip at the sidewalk edge and a pool in which water could build up and drain toward Bethany Home Road, a major street that has curbs, gutters, and drainage sewers. After Respondent performed its work, the new asphalt abuts the sidewalk as before (there has never been a curb or gutter), but there is no longer any lip because the horizontal surfaces of the sidewalk and road are now even. Mr. Marchese testified that this creates more water coming toward his condo and that Respondent was supposed to leave the lip there. The photographic exhibits show various levels of water on the area of concern. 4. ROC Inspector Mark Alyea inspected the jobsite on May 31, 2011, and declined to issue a Corrective Work Order. He testified that Respondent is not the cause of the water drainage toward the condos, which is the central problem facing Complainant. He described the area as without a curb or gutter at the sidewalk in question, the sidewalk is slanted towards the condos rather than away from it, and the condos themselves are set too low so that the floor grade is actually lower than the street grade. These are all pre-existing conditions that cause water build-up. He testified that there are ways to address those problems (building a curb and gutter and slanting the sidewalk away from the condos), but that those are outside the scope of Respondent’s contract. 5. Respondent’s representatives both testified that they caused the road to slope toward Bethany Home Road for drainage. Thus, they believe that they have graded it for drainage. They noted that the new asphalt does not allow water to penetrate through it like the old cracked and potholed road. Therefore, more water runs toward the sides of the road with the new asphalt. They pointed out, however, that the lack of proper drainage on the sides of the street was a pre-existing condition that Complainant did not want addressed due to expense. Although there is no written record of Complainant’s wish to decline those extra measures, Mr. Marchese did not dispute that testimony. 6. Mr. Marchese’s point of contention is that he has lost the lip that held some of the water back. He asserts that the drainage problem that existed has been made worse by the loss of the lip. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] 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.[3] Complainant has not met that burden. 2. The Citation and Complaint, as amended at hearing, alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) (failure to follow plans, specifications, and building codes).[4] Here, the specification alleged to have not been followed is “grade for drainage.” It is undisputed that Respondent graded the road to slope toward Bethany Home Road. In addition, while the lip that is the basis of the complaint is indeed no longer present, it was a minor help with regard to the drainage problem that already existed and is not Respondent’s responsibility. The contract specifications did not clearly call for retention of the lip. 3. This tribunal finds that Respondent’s work conformed to the specifications in the written contract. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-2764 against Respondent CC Russell Asphalt and Concrete, 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, January 23, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [4] The unamended Citation and Complaint cited A.R.S. § 32-1154(A)(3), namely A.C.C. R4-9-108, alleging poor workmanship.

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