ALJDEC decisions subject to certification as final

2012A-1636-ROC · Registrar of Contractors · 2012-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 10, 2012 APPEARANCES: Complainant William H. Zednick appeared on his own behalf; Respondent V I P Construction Inc appeared through Victor Peterson, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On September 20, 1993, the Arizona Registrar of Contractors (the Registrar) issued License No. B.099261-R to Respondent V I P Construction Inc (Respondent). On March 27, 2012, the Registrar received a complaint from Complainant William H. Zednick (Complainant) against Respondent regarding its construction site at 18259 West Santa Alberta Lane, Lot 56, Mesa, Arizona. According to Complainant’s complaint, “[t]he stucco on the outer west side of [Complainant’s] wall was damaged during the diging/backhoeing [sic] process of preparing a footer at [the] construction site.” Complainant requested that the Registrar require Respondent to pay to repair the damage to the stucco on his wall. The complaint was assigned to the Registrar’s inspector, James Hennessy, for investigation. On April 12, 2012, Inspector Hennessy performed a jobsite inspection with both parties present. On April 12, 2012, Inspector Hennessy sent a letter to the parties, informing them that: It is the opinion of this inspector that [he is] not able to determine if the action of the Respondent cause[d] the settling of the front wall [or] if the condition was pre-existing and caused by normal settling. Therefore there is no action required by the contractor at this time.

Inspector Hennessy’s letter also informed Complainant that if he disagreed, he could request in writing that the Registrar conduct a further review of the complaint. On April 30, 2012, the Registrar received a letter from Complainant, requesting a hearing on the complaint. On July 11, 2012, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Respondent timely answered the Citation and Complaint, denying any statutory violation. Respondent affirmatively alleged that there was no evidence to support a finding that Respondent undermined the footing of Complainant’s wall. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held at the Office of Administrative Hearings on October 10, 2012. Because Inspector Hennessy had retired from state service, Inspector Cruz testified about the Registrar’s standards.. Complainant submitted one exhibit and testified on his own behalf. Respondent presented the testimony of one witness, Greg Nelson, its superintendent on the construction site. Additional Evidence Complainant’s residence is located on Lot 54. Complainant’s wall along the edge of his property was near the wall to be built on Lot 56. Complainant testified that prior to the start of construction on Lot 56, his wall had no damage and the footing was not compromised. Complainant submitted photographs purporting to show the damage to his wall that he alleged was the result of Respondent’s construction on Lot 56. In the “Before” photographs, the footing of Complainant’s wall was shown from above. The underside of the footing was not shown to demonstrate that the footing was not compromised prior to Respondent’s construction on Lot 56. No “Before” photographs of the wall were submitted showing the crack in the stucco was not present prior to construction on Lot 56. In the “After” photographs, the underside of the footing was visible and showed obvious undermining of the footing. Also, “After” photographs showing the crack in the stucco were submitted. During Respondent’s construction on Lot 56, Complainant asked a worker on the site to pour some concrete under the footing of his wall to prevent further damage. Without consulting anyone else, the worker complied with Complainant’s request. Complainant requested that Respondent repair the crack in the stucco on his wall. Respondent refused Complainant’s request because it did not believe it was responsible for the damage, it did not have a contract with Complainant to perform repair work, and it did not want to be responsible for the wall in the future. Respondent denied that it caused any collateral damage to Complainant’s wall by undermining the footing. Respondent alleged that the undermining of the footing was likely the result of erosion caused by water runoff. On October 2, 2012, Inspector Beau Cruz performed a jobsite inspection with both parties present. Inspector Cruz concluded that the crack in the stucco could have been caused by the undermining of the footing and indicated that a large part of the footing was exposed. However, Inspector Cruz was unable to determine the cause of the undermining. He proposed that the undermining could have been the result of water run off. Inspector Hennessy and Inspector Cruz both concluded the damage could not reasonably be attributed to Respondent. According to the Registrar’s public website, Respondent’s license is current and in good standing. This complaint appears to be the only complaint pending against the license. CONCLUSIONS OF LAW The charged contracting law violation in this matter lies within the Registrar’s jurisdiction to determine. See A.R.S. § 32-1101 et seq. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(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). Complainant’s testimony about the condition of the footing and wall before Respondent began construction was not credible. Instead, it appears more likely that the damage to the footing and wall pre-existed Respondent’s work on the adjacent property. Therefore, Complainant did not establish that Respondent’s actions caused collateral damage to his footing and wall.

RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant William H. Zednick’s complaint against Respondent V I P Construction Inc’s License No. B.099261-R in Case No. 2012-1636 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, October 30, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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