ALJDEC decisions subject to certification as final

2012A-1623-ROC · Registrar of Contractors · 2013-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2013, at 8:15 a.m. APPEARANCES: Lucia Sparks (hereinafter “Complainant”) appeared on her own behalf. Andrew Kersey Bushman dba Bushman and Bushman Construction (hereinafter “Bushman” or “Mr. Bushman”) appeared on his own behalf. 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 Bushman is the holder of License No. KB-2.269043-D issued by the Registrar of Contractors. This is a residential matter where Bushman installed fence posts, installed cement, and performed grading work at Complainant’s rental property located at 357 N. 1st Ave., Holbrook, Arizona 86032. Complainant was dissatisfied with Bushman’s workmanship and filed a formal Complaint against Bushman with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Tom Sandoval (hereinafter “Inspector Sandoval”), conducted an onsite inspection at Complainant’s rental property on April 12, 2012. Inspector Sandoval issued a written Corrective Work Order on April 23, 2012, directing Bushman to perform designated corrective work on Complainant’s rental property located at 357 N. 1st Ave., Holbrook Arizona 86032. The Corrective Work Order provided, in pertinent part, as follows: 1] Graded ground incorrectly. The concrete drains away from the home and in the opinion of this inspector is correct. Homeowner stated that she did want a swale type of drainage but this would have probably [have] been a trip hazard more than a nice clean flat drainage to the street. No action required.

2] Concrete is two noticeable different colors and darker color smeared on top of lighter color-looks awful. A. Two slabs of concrete were poured at two different times and in the opinion of this inspector the concrete color gray will not always be exactly the same color. No action required.

B. The ctr. did smear some of the darker colored concrete on the lighter and in the opinion of this inspector needs to be cleaned off. Contractor to correct by appropriate means.

3] Concrete around building roughly poured and not finished off- done sloppy (all around the sides of the building against building). This was a broom finish basically and Homeowner stated at jobsite that she was ok with that. The area in question was where a foundation footing was sticking out of the concrete against the wall. This is not far enough out that it would produce a tripping hazard[;] it is just rougher tha[n] the new pour. Ctr. stated that this was part of the foundation and did not want to cut into it. Homeowner stated that she should have been notified and this cut out but she did see the forms set up and did state that she was an engineer at one time. In the opinion of this inspector ctr. did do this correctly as he could have partially destroyed the integrity of the building if he had cut into this. No action required.

4] Concrete not poured and finished off on one half of west side of building and garage. This was not in the contract to do this area and Homeowner kept stating that she assumed certain things would be done but never got anything in writing. There was some concrete at the foundation to divert water from the wall away from the garage, but Homeowner expected more than what the ctr. installed. I could not determine if this needed more to be done or not[;] ctr. stated that he did this as a favor after the fact. No action required.

5] Numerous cracks in new concrete. These were with in Workmanship Standards. No action required.

6] Gate post in front is for a 3ft gate and not a 3’ 10” to 4 ft gate and also not at least 2 ft away from gas meters as requested and agreed upon. One gate is correct at 3 ft. and the other was also 3 ft. but not on contract as to size of second gate and where it should be. The ctr. stated that he could put in another post just to appease the Homeowner and would work that out with her and she was in agreement to that. Contractor to correct by appropriate means and per jobsite agreement.

7] New wood screen door I bought in December broken at bottom corner and piece of door frame broken off at bottom. No longer an issue. No action required.

Addendum item

Concrete was poured over onto neighbor’s property. Neighbor wants the concrete removed from his property. Homeowner was the one to instruct the ctr. to install the concrete per contract but at jobsite she stated that she wanted the concrete to drain the other way towards the home. The ctr. [knew] that this was wrong and made it so it drained away from the home, this was done properly in the opinion of this inspector. The next door neighbor stated that he was worried about the excess water now going onto his property because this yard area was lower [than] the front. The Homeowner stated that this was grandfathered in and that it was her property, but no one had talked to the city about this. She stated that she would talk it over with the neighbor and see if they could work out a deal to correct this. No action required.

The parties were unable to resolve their differences and on March 26, 2013, the Registrar of Contractors issued a formal Citation and Complaint charging Bushman with possible violations of A.R.S. § 32-1154(A)(3),[1] namely A.A.C. R4-9-108,[2] and A.R.S. § 32-1154(A)(23).[3] Testimony of Inspector Sandoval Inspector Sandoval testified that he conducted a prehearing inspection at Complainant’s rental property on July 19, 2013. Inspector Sandoval stated that the concrete still had areas of different colored concrete “smeared” on it. Inspector Sandoval testified that the smeared areas comprised two circles that were approximately one foot in diameter and several smaller spots on the concrete. Inspector Sandoval testified that the concrete had not been corrected. Inspector Sandoval stated that the Corrective Work Order had not been fully complied with. Inspector Sandoval testified that he included item no. 6 (“gate post is for a 3’ gate and not a 3’10” to 4’ gate and also not at 2’ away from gas meters as requested and agreed upon”) in the Corrective Work Order because Bushman agreed to correct by appropriate means and per jobsite agreement. Inspector Sandoval stated that the homeowner has had the gate post installation corrected by Aaron Fence.[4] Inspector Sandoval testified that Complainant had caused the entire fence installation to be removed and replaced and that the fence was now in a different location on Complainant’s rental property. Inspector Sandoval testified that the concrete that Bushman installed at Complainant’s rental property drained away from the property and complied with applicable workmanship and industry standards. Inspector Sandoval testified that Bushman poured two different batches of concrete from the same material supplier at the rental property. Inspector Sandoval stated that the color variation between the two batches of concrete was within applicable standards. Inspector Sandoval testified that the rental property appeared to be an old garage that had been turned into a residence. Inspector Sandoval stated that Bushman had provided a “broom” finish for the new concrete that was poured around the rental property. Inspector Sandoval stated that the broom finish on the concrete was acceptable and complied with applicable standards. Inspector Sandoval testified that Complainant stated that she had 25 years of experience as a civil engineer. Inspector Sandoval stated that the installation of concrete on one half of the west side of rental home and garage was not in the parties’ written agreement. Inspector Sandoval stated that there was insufficient evidence presented to establish that Bushman had agreed to perform the concrete installation on the west side of the rental property. Inspector Sandoval testified that he observed one concrete crack on the new concrete installed by Bushman. Inspector Sandoval stated that the concrete crack was too small to require correction. Inspector Sandoval testified that the screen door was not at issue at his first onsite inspection. Inspector Sandoval stated that the parties reached an agreement for Bushman to pay Complainant for the damaged screen door. Inspector Sandoval testified that the concrete ledge that Complainant asserted had been installed on the neighbor’s property was actually on Complainant’s property. Inspector Sandoval stated that Complainant wanted the concrete ledge to drain water toward the rental property. Inspector Sandoval testified that Bushman installed the concrete ledge to drain water away from the rental property instead of towards it. Inspector Sandoval opined that the concrete ledge installation was correct. Complainant’s testimony Complainant testified that she discussed “what she wanted done” with Bushman. Complainant stated that she discussed the drainage problems that were present at the rental property before Bushman performed any construction work. Complainant testified that she told Bushman where she wanted the cement poured. Complainant stated that she also told Bushman where to install the fence and the size of the fence posts that she desired. Complainant testified that she told Bushman to install the gate posts two to three feet away from the gas meters. Complainant testified that she gave specific directions to Bushman and then asked him to repeat her directions to ensure that he understood the construction work that she wanted him to perform. Complainant stated that the grading on her rental property was not performed in accordance with her directions. Complainant testified that the construction work at her rental property should have been performed in accordance with her directions. Complainant testified that she did not deny Bushman access to her rental property. Complainant stated that had faxed Bushman written authorization for access to her rental property on numerous occasions.[5] Complainant testified that she was home recovering from surgery for eight weeks and that Bushman did not contact her in any manner during her eight-week convalescence. Complainant testified that she was very dissatisfied with Bushman’s workmanship. Complainant stated that she had multiple colors of concrete and that the concrete was cracked. Complainant testified that the fence installed by Bushman was in the wrong location. Complainant testified that she finally retained a fence company to remove and replace the fence posts and fence installed by Bushman. Complainant stated that the new fence is now in the correct location and in accordance with her wishes. Testimony of Rebecca Nicole Bushman Mr. Bushman’s wife, Rebecca Nicole Bushman (hereinafter “Ms. Bushman”), testified that she was present on the first day that Bushman worked on the rental property. Ms. Bushman stated that she was present during Inspector Sandoval’s first onsite inspection. Ms. Bushman acknowledged that Bushman agreed to “cover” the cost of the damage to the screen door. Testimony of Mr. Bushman Mr. Bushman testified that he was contracted to install new concrete at Complainant’s rental property in an effort to stop water from entering the rental property. Mr. Bushman stated that the grading and concrete work was performed by Bushman in accordance with workmanship and industry standards. Mr. Bushman testified that he had agreed to replace a fence post during Inspector Sandoval’s first onsite inspection because he wanted to satisfy Complainant. Mr. Bushman testified that he repeatedly attempted to gain access to Complainant’s rental property to comply with the terms of the Corrective Work Order. Mr. Bushman stated that he called Complainant twice on April 27, 2012, and left Complainant a message on her answering machine. Mr. Bushman testified that he sent Complainant a certified letter on April 30, 2012, requesting access to her rental property. Mr. Bushman stated that he attempted to contact Complainant by telephone again on May 7, 2012, and December 7, 2012. Mr. Bushman testified that sent a written request for access to Complainant on December 12, 2012. Mr. Bushman stated that the letter was returned marked “unclaimed.” Mr. Bushman testified that he sent Complainant two additional written requests for access to her rental property on January 4, 2013. Mr. Bushman stated that both certified written requests were returned marked “unclaimed.”[6] Mr. Bushman’s testimony regarding Complainant’s failure to accept certified letters from Bushman is found to be credible. Mr. Bushman testified that he was ready and willing to perform the corrective actions required in the Corrective Work Order but was unable to gain access to Complainant’s rental property. Mr. Bushman stated that Complainant was pleased with Bushman’s work when it was first completed. Administrative notice is taken of Bushman’s prior license record as reflected on the Registrar of Contractors’ public website on August 2, 2013. Such prior license record reflects that License No. KB-2.269043-D of Bushman is current. 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. Complainant had a fencing company remove the fence and fence posts installed by Bushman. Bushman’s construction work on the fence at Complainant’s rental property has been modified by an alternative contractor. Pursuant to A.R.S. § 32-1155(C),[7] no further action by Bushman is required on the fence. 4. Inspector Sandoval testified that the concrete smears on the concrete at Complainant’s rental property failed to comply with applicable workmanship standards and required correction. Item No. 2(B) of the Corrective Work Order required Bushman to properly correct the smears of darker colored concrete on the lighter colored concrete. Bushman performed no corrective work on the concrete smears. This Tribunal concludes that Bushman violated the charged provision of A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108. 5. The parties were in sharp dispute regarding access to Complainant’s rental property. Complainant asserts that she repeatedly faxed Bushman permission for access to her rental property. Bushman produced credible evidence that Complainant had repeatedly failed to claim certified letters mailed to her by Bushman requesting access to the rental property. Complainant failed to sustain her burden of proving by a preponderance of the evidence that Bushman violated the charged provision of A.R.S. § 32-1154(A)(23). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. KB-2.269043-D of Bushman shall be suspended until the Registrar of Contractors receives and accepts written proof that Bushman has fully complied with the terms of Item No. 2(B) of the written Corrective Work Order issued in this matter. It is further recommended that if on or before the effective date of this Order, Bushman fully accomplishes the above described corrective action, then the above-provided License suspension shall not take place and this matter shall be closed. It is further recommended that any refusal by Complainant to accept a certified letter from Bushman requesting access to Complainant’s rental property shall be considered as a denial of reasonable access. It is further recommended that if on or before the effective date of this Order, Bushman provides acceptable written proof that Bushman has been denied reasonable access to Complainant’s rental property, then the above-provided License suspension shall not take place and this matter shall be closed.

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, August 2, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 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. [2] 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.

[3] 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. [4] Administrative notice is taken of Aaron Fence’s prior license record as reflected on the Registrar of Contractors’ public website on August 2, 2013. Such prior license record reflects that License No. C-14.086363 of Aaron Fence is current [5] See Exhibit No. C-8 (Copies of faxes to Bushman). [6] See R-3 (Copies of Certified Mail Receipts marked unclaimed). [7] A.R.S. § 32-1155(C) provides, in pertinent part, as follows: C. The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use.

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