ALJDEC decisions subject to certification as final

2011A-753-ROC · Registrar of Contractors · 2011-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2011, at 1:00 p.m. APPEARANCES: Complainant Apache Lodge, L.L.C. appeared through Julie Conner, its managing member; Respondent C.C. Russell Asphalt and Concrete, Inc. appeared through Curtis Charles Russell, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In May 2000, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC155205, Class A-14 for commercial asphalt paving to C.C. Russell Asphalt and Concrete, Inc. (“Respondent”). Curtis Charles Russell is Respondent’s qualifying party and officer. Apache Lodge, L.L.C. (“Complainant”) is the legal entity that owns a 30- room motor lodge at 1130 East Gurley Street, Prescott, Arizona that was built in 1946 (“the motor lodge”). Julie Conner is Complainant’s managing member. On February 4, 2011, the Registrar received a complaint from Complainant against Respondent concerning its performance of a contract to tear out the old asphalt parking lot and construct a new asphalt parking lot with striping and grading for drainage. The Registrar assigned the complaint to its inspector, Randy Cason, for investigation. Inspector Cason performed a jobsite investigation. On March 7, 2011, Inspector Cason issued a Corrective Work Order (“CWO”) that required Respondent within 25 calendar days to perform certain corrective actions to the asphalt parking lot that it had constructed at the motor lodge, in relevant part as follows: The Respondent had overlaid the new asphalt over existing asphalt and concrete (rear of motel). In these areas the cold joints are high and do not plane in properly. Where the parking lot butts into the property at the rear of the motel; [sic] the Respondent had overlaid the new asphalt over existing asphalt; the finish is not completed in a workmanlike manner. The edge of the new asphalt is jagged and is cracking apart. The Respondent is to correct by appropriate means. . . . .

Down the middle of the motel’s parking lot between the rooms; [sic] the asphalt has sunk. This is the area were [sic] the Respondent had broken the water pipe. The water pipe was corrected (replaced) then the Respondent finished installing the asphalt. At this time there are multiple areas that are not up to standards. There are also visible areas where the grading is high and low causing drainage issue at the rear of the motel (in front of the laundry room). The Respondent is to correct by appropriate means.

Complainant submitted a formal request to the Registrar to issue a citation against Respondent. On April 26, 2011, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4- 9-108, and (23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that certain areas of the parking lot were settling because they were over a leaking water line that was not Respondent’s responsibility. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on July 20, 2011. Inspector Cason testified. Ms. Conner submitted six exhibits and testified on Complainant’s behalf. Mr. Russell testified on Respondent’s behalf and presented the testimony of Barry Richardson, the qualifying party and officer of Arizona Central, Inc. doing business as (“dba”) Asphalt Rock and Roll, License No. ROC108882, Class A-14, who has 35 years of experience in asphalt paving. Hearing Evidence Complainant submitted a schematic drawing and an aerial photograph of the motor lodge. The motor lodge consists of two buildings that mostly enclose a rectangular courtyard for guest parking. Gaps between the two buildings are located closest to East Gurley Street, at the lobby/entry, and directly across from the lobby/entry, through which guests and employees may leave the courtyard and/or access two small outbuildings, in which a coin laundry, storage, and two guest rooms are located. The main water line is located between the two buildings, through the center of the courtyard and the two gaps between the buildings. Respondent contracted to remove and replace the asphalt in late August 2009. During Respondent’s removal of the old asphalt, Respondent broke the main water line. Because the water line that Respondent broke was the original line that was constructed in 1946, Complainant decided to upgrade and to contract with Herbert Frank Gifford dba Gifford Plumbing, License No. 081868, Class L-37 for commercial plumbing (“Gifford Plumbing”) to replace the main water line. Gifford Plumbing dug a trench, and on approximately October 12, 2009, completed replacement of Complainant’s main water line. The parties disputed at hearing whether Gifford Plumbing or Respondent backfilled and compacted the trench after Gifford Plumbing replaced the main water line. Inspector Cason testified that regardless of whether Gifford Plumbing or Respondent backfilled the trench, Respondent accepted the surface by installing asphalt over the trench. Respondent subsequently installed the asphalt in Complainant’s courtyard. Mr. Russell testified that before Respondent installed the new asphalt, it compacted the entire 23,000 square feet of the courtyard and other areas of the parking lot. Mr. Russell testified that after Respondent had installed the ABC underlayment, it compacted the area a second time. Respondent installed the asphalt to crown in the center of the courtyard, so that it would drain toward the edges, where a concrete drain is located. By June 2010, the asphalt between the two buildings at the rear of the courtyard had settled over or near the location of the main water line. Ms. Conner complained to Mr. Russell. In June, Mr. Russell’s son traveled to Prescott to attend the rodeo and stayed in the motor lodge. Mr. Russell testified that his son told him that he thought the asphalt was settling due to a leak in the main water line. Inspector Cason testified that there was no sign of a leak at the initial jobsite inspection. In addition to the asphalt settling, Inspector Cason testified that Respondent installed asphalt over an existing concrete pad behind the motor lodge, and feathered the edges of the asphalt, but left them loose and uneven. Inspector Cason testified that applicable workmanship standards required “a nice straight line” between existing and new asphalt. In addition, Inspector Cason testified that Respondent installed asphalt with a rolled edge over the concrete, presenting a risk of ponding. Ms. Conner testified that the motor lodge is near a Veterans’ Administration hospital, that elderly and disabled pedestrians frequent Complainant’s parking lot, and that the rolled edge of the asphalt presents a trip hazard. Mr. Richardson testified that asphalt overlaid on concrete needs to be thicker on the corners to prevent the asphalt from wearing off and allowing the concrete to show. Mr. Richardson acknowledged that he had never been to the motor lodge or inspected Respondent’s work. Complainant submitted the passing results of a backflow test that R.E.D. Plumbing, Inc., License No. ROC188176, Class K-77 performed on the motor lodge’s plumbing on May 24, 2011. Ms. Conner testified that the City of Prescott requires all commercial establishments to pass such a test annually to protect the municipal water supply. Complainant also submitted a letter signed by Herb Gifford of Gifford Plumbing on July 19, 2011, in relevant part as follows: On July 1, 2011, I arrived at the Apache Lodge to re-inspect the plumbing I installed in October of 2009. According to Julie Conner, [Respondent] diagnosed the erosion of the asphalt concrete as a symptom of an underground water leak.

I inspected the eroded asphalt concrete in the vicinity of the water line by driving a steel rod into the ground at 4 different locations to check for moisture and percolation. Although I found evidence of slight moisture, it was consistent with normal drainage from the parking lot as [Complainant’s] walks are routinely washed with a water hose and the runoff accumulates in the sinking asphalt concrete. The moisture was not consistent with a water leak and the test holes did not fill with water.

I instructed John Dickey, [Complainant’s] manager, to check the water meter for usage at 1:00 am when no usage should be expected. He reported that the dial on the water meter indicated no leakage.

The old water lines were removed and replaced with the same materials used by the City of Prescott Water Services—PEX water lines and fittings. PEX meets the following standards: National Consensus Standards: ASTM F 876, F 877, AWWA C904 and CSA B137.5. – ASTM, ANSI/NSF International and CSA Standards – United States and Canada; NPC, UPC, IPC and NSPC, and approved by HUD for hot and cold potable water plumbing use.

My inspection revealed no water leaks associated with the installation of the new water lines.

Inspector Cason testified that he performed a prehearing inspection on July 19, 2011. Respondent had not corrected either of the items on the CWO. In addition, there were three new areas that were 40’ or 50’ away and two new areas that were 5’ to 10’ feet away from the areas over or near the water line that the CWO had required Respondent to correct. Inspector Cason testified that the new areas were 18” to 24” in diameter that had sunk approximately 1” to 2”. Inspector Cason testified that there was no sign of a water leak at the prehearing inspection. The new areas are all near the perimeter of the courtyard, where the concrete drain is located. Planters are located between the guest rooms and the concrete drain. Mr. Russell testified that the concrete drain is more than fifty years old, and that it is possible that cracks may have developed in the concrete to allow water to seep under the asphalt, and that such water seepage would not be Respondent’s responsibility. Mr. Richardson and Mr. Russell testified that water leaks could cause asphalt to settle. Mr. Russell testified that there was no other explanation for the settlement that has occurred on Complainant’s parking lot, and that he remembered the asphalt looking wet over the areas that had settled. However, neither Mr. Richardson nor Mr. Russell had performed any tests to detect a potential water leak. Respondent did not submit the results of any compaction test that it performed on the project. According to the Registrar’s record, Respondent’s license is current and in good standing. This is the only complaint pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] Complainant established that Respondent’s construction of the joints over the concrete pad at the rear of the parking lot did not comply with the Registrar’s standards because the joints are too high and the transition to existing asphalt is too jagged. Complainant therefore established that Respondent’s installation of this area of asphalt violated A.R.S. § 32- 1154(A)(3), specifically A.A.C. R4-9-108,[6] and that its failure to repair its poor installation to comply with the CWO violated A.R.S. § 32- 1154(A)(23).[7] Both parties agreed that the asphalt that Respondent installed is settling over numerous areas of Complainant’s parking lot. Respondent argued that it is not responsible for the settling because it is due to various water leaks or seepage, not poor workmanship. Mr. Russell’s testimony that the areas of settling were wet is not credible and was contradicted by Inspector Cason’s testimony and Gifford Plumbing’s report.[8] Respondent did not bear its burden to establish the affirmative defense that the parking lot is settling due to water leaks. Therefore, Complainant established that Respondent also violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and (23) in its initial installation of and failure to repair the areas of the parking lot that are settling. / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent C.C. Russell Asphalt and Concrete, Inc.’s License No. ROC155205 until it has corrected the deficiencies noted on the CWO. It is further recommended that the Registrar not suspend Respondent’s license and, instead, close Complainant Apache Lodge, L.L.C.’s complaint in Case No. 2011-753 if on or before the effective date of the Registrar’s final order, Respondent provides written proof that is satisfactory to the Registrar that it has corrected in a professional and workmanlike manner the following two items: (1) The asphalt it installed over the concrete pad behind the motor lodge; and (2) The areas of asphalt that have settled. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, August 2, 2011. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [7] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [8] Gifford Plumbing’s report is hearsay. See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). Hearsay may be admitted in an administrative hearing. See A.R.S. § 41-1092.07(F)(1). Hearsay may be relied upon if it is undisputed or the kind of evidence upon which reasonable persons would rely in serious matters. See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)).

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