ALJDEC decisions subject to certification as final

2012A-1027-ROC · Registrar of Contractors · 2012-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 27, 2012, at 8:00 a.m. APPEARANCES: Richard Imburgia (hereinafter “Complainant”) appeared on his own behalf. Outdoor Creations LLC (hereinafter “Outdoor”) appeared through its authorized representative, Jeffrey Allen Christ. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Outdoor is the holder of License No. K-26.191048-D issued by the Registrar of Contractors. 2. This is a residential matter where Outdoor performed concrete coating work at Complainant’s residence. 3. Complainant was dissatisfied with Outdoor’s workmanship and complained to Outdoor. The parties reviewed Outdoor’s concrete coating work at Complainant’s residence and Outdoor declined to perform any corrective action on the concrete coating work. 4. When Outdoor refused to comply with Complainant’s demand for corrective action for the concrete coating work performed by Outdoor, Complainant filed a formal complaint against Outdoor with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Dennis Cook (hereinafter “Inspector Cook”), conducted an onsite inspection. Inspector Cook moved to close the Complaint on the following basis: The concrete coating was properly installed as per the contract. The stained/discolored areas behind the bar could not be confirmed to be the responsibility of the Respondent. No cracking was noted. The treatment of the control joints meets the standard of the industry. The umbrella stand cap was corrected prior to the jobsite inspection.

Based on the above, a citation will not be issued against the contractor at this time. However, you may request in writing, a further review of your complaint. If you have additional information to support your complaint, you should submit it with your request for review. After such review, a determination will be made on whether a citation should be issued.[1]

6. Inspector Cook’s Jobsite Inspection Notes provide, in pertinent part, as follows: [Respondent] – present: Jeff [Christ] & Material supplier

[Complainant] [2] – present: Richard Imburgia

Notes: Four items were listed in the complaint: 1) The contractor corrected dark spots in the original installation and the h/o is not satisfied with the corrective action that was done. It is this inspector’s opinion that the coating is acceptable and no correction is required. 2) Behind the bar the h/o showed some darkened areas that appear to be stains (possibly cooking and or grease spills). No cracking was noted. No corrections. 3) The control joints were not coated and the work is as per the contract. No corrections. 4) The umbrella stand cap was corrected prior to the jobsite inspection and no correction is required.

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7. Complainant disagreed with Inspector Cook’s determination to close the Complaint and requested an administrative hearing. 8. Inspector Randy Cason (hereinafter “Inspector Cason”) testified that Inspector Cook had separated from the Registrar of Contractors and that he had conducted a prehearing inspection at Complainant’s residence on September 26, 2012, at 10:00 a.m. Inspector Cason stated that he reviewed the items set forth in the Complaint and confirmed that the concrete coating work performed by Outdoor was within applicable workmanship and industry standards.[3] 9. Inspector Cason testified that he did observe a discolored area on the concrete coating by Complainant’s outdoor bar. Inspector Cason stated that he was unable to determine what had caused the discolored areas by the outdoor bar and that he agreed with Inspector Cook’s previous determination that the discolored areas behind the bar could not be confirmed to be the responsibility of Outdoor. Inspector Cason testified that the discolored area on the concrete coating by the bar was damage caused by something placed or dropped on the concrete coating after the concrete coating was applied.[4] 10. Inspector Cason testified that during the prehearing inspection Complainant showed him “hairline” cracking in portions of the concrete coating. Inspector Cason stated that Inspector Cook had indicated in his Jobsite Inspection Notes that no cracking was noted. Inspector Cason testified that the hairline cracking that he observed was within applicable workmanship and industry standards. Inspector Cason testified that he concurred with Inspector Cook’s determination to close the Complaint.[5] 11. Inspector Cason testified that Complainant did not identify any problems with Outdoor’s work on his cool decking near the pool area until the day of the hearing. Inspector Cason stated that there was nothing in Inspector Cook’s notes that indicated that Inspector Cook inspected Complainant’s cool decking near the pool area. Inspector Cason testified that Complainant was attempting to raise new items at the hearing that were not on his Complaint. Inspector Cason stated that it is the policy of the Registrar of Contractors to only inspect the specific items of the Complaint identified by Complainant as being items at issue.[6] 12. Inspector Cason opined that the concrete coating applied to the control joints at Complainant’s residence was applied correctly within applicable workmanship and industry standards. Inspector Cason stated that his opinion was based on his experience in the construction industry and his experience as an Inspector for the Registrar of Contractors.[7] 13. Jeffrey Allen Christ (hereinafter “Mr. Christ”) testified that he has been a licensed contractor in the State of Arizona since 2003. Mr. Christ stated that he has attended numerous concrete coating classes. Mr. Christ testified that the hairline cracking present in Complainant’s concrete coating would have occurred within twenty-four hours of its application.[8] 14. Ralph Skaggs (hereinafter “Mr. Skaggs”) testified that he has thirty- five years of experience in the concrete industry, Mr. Skaggs stated that he is the manufacturer’s representative for the brand of concrete coating applied by Outdoor. Mr. Skaggs opined that the concrete coating in the area by the outdoor bar at Complainant’s residence had been damaged. Mr. Skaggs acknowledged that no forensic investigation had been performed at Complainant’s residence and that his opinion was based on what he observed at Complainant’s residence and his past experience in the industry.[9] 15. Mr. Christ testified he had made several trips to perform work at Complainant’s residence to “make Complainant happy.” Mr. Christ stated that Complainant’s list of concerns kept growing despite Outdoor’s repeated efforts to satisfy Complainant. Mr. Christ stated that he recommended that Complainant and Outdoor jointly request a third-party inspection by the Registrar of Contractors.[10] 16. Mr. Christ testified the stained area in front of the outdoor bar was not there when Outdoor completed its work at Complainant’s residence. Mr. Christ stated that the stained area was on top of the concrete coating applied by Outdoor. Mr. Christ testified that the stained area would not “take color.”[11] 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. There was no credible evidence that the stained area behind the outdoor bar was caused by Outdoor. There was no credible evidence that the hairline cracking in the concrete coating at Complainant’s residence fails to comply with applicable workmanship and industry standards. There was no credible evidence that Outdoor’s application of concrete coating on the control joints of Complainant’s concrete fails to comply with applicable workmanship and industry standards. This Tribunal concludes that Complainant failed to meet his burden of proof to establish a violation by Outdoor of the charged provision of A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108.[12]

RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, shall be dismissed. 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, October 12, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 4/9/12 RCC007A Letter. [2] The notes refer a scrivener’s error the parties are reversed. [3] 9/27/12 Hearing Record (hereinafter “H.R.”) at 28:31-30:41. [4] H.R. at 30:42-33:04. [5] H.R. at 33:05-49:45. [6] H.R. at 49:46-56:07. [7] H.R. at 56:08-1:00:20. [8] H.R. at 1:13:10-1:30:49. [9] H.R. at 1:32:30-1:40:47. [10] H.R. at 1:52.34-1:58:05. [11] H.R. at 158:06-2:00:07. [12] A.A.C. R4-9-108 provides 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.

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