ALJDEC decisions subject to certification as final

2012A-2167-ROC · Registrar of Contractors · 2013-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 21, 2013 APPEARANCES: Sandra Eastman appeared on behalf of Complainants. Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 9.230315-R to Eurotech Decorative Concrete LLC (“Respondent”). On April 26, 2012, the Registrar received a Complaint against Respondent from Kevin and Sandra Eastman (“Complainants”) regarding their concrete design patio that was installed by Respondent at 1527 North Wickiup Road, Apache Junction, Arizona. After the Registrar assigned the Complaint to its inspector, Beau Cruz, for investigation, he performed a jobsite inspection. The Corrective Work Order issued on May 15, 2012, included the following: Complaint 1) Concrete is cracking and lifting: Noted numerous areas of cracking and delaminating on surface of acrylic reinforced concrete (stamped) overlay coating that was applied over the front patio/porch and front deck/pool deck area. Contractor stated that he assumed responsibility and stated to this inspector and the complainant at the jobsite inspection, that in the spirit good customer service, deck would be corrected.

Complaint 3) Grout coming out in pieces and most of it cracking: Noted numerous areas of cracking and delaminating concrete coating (grout) that was applied over the existing control joints of the front deck/pool deck area. In several areas, delaminating has encroached on the surrounding stained acrylic reinforced concrete (stamped) overlay coating. Contractor stated that he assumed responsibility and stated to this inspector and the complainant at the jobsite inspection, that it would be corrected.

Complaint 4) Solvent spilled that ate the color and made huge mess: Noted an area of approximately 3 ½′ x 3 ½′ in diameter on the sealer over the acrylic reinforced concrete (stamped) overlay coating on the surface pool deck that is to the left of pool step/stairs area. Contractor stated that yes it had happened as complainant stated and assumed responsibility and stated to this inspector and the complainant at the jobsite inspection, that it would be corrected.

Complaint 7) Respondent down a gooey substance (wrong product he said) then power washed it out, only most of it, went into the pool. Coated the pool, ruined the Sand Filter, clogged and broke impeller at pump, and complainant repaired all by him, at a cost of $3,700.00. Complainant just wants the deck done correctly and not to look like the disaster it looks like now: Noted “gooey” substance on numerous areas of the surface of the stucco of the block fence. Contractor stated to this inspector and the complainant at the jobsite inspection, would have remove “gooey” substance, and that would also have painted. I informed contractor that he cannot paint fence or subcontract it to another individual, or else can and would be considered contracting beyond scope of license. Contractor accepted and stated that would correct by appropriate means.

Addenda’s

Complaint 9) Residue of “gooey” substance that is on fence stained entry (painted wrought iron) gate: Smudged residue of “gooey” substance on surface of wrought iron entry gate/fence. Contractor stated to this inspector and the complainant at the jobsite inspection, would have remove gooey substance, and that would also have painted. I informed contractor that he cannot paint fence or subcontract it to another individual, or else can and would be considered contracting beyond scope of license. Contractor accepted and stated that would correct by appropriate means.

In the spirit of good customer service, contractor assumed responsibility at the jobsite inspection of the following and agreed to correct by the appropriate means

Complaint 2) Concrete put over all suspension joints: Complainant failed to provide documentation to show that contractor was not to grout control joints, although contractor did state at the jobsite inspection, he would correct by the appropriate means and or as complainant specifies.

Complaint 5) Respondent didn’t put drains back so a great water hole is present: Respondent stated that complainant approved with application and covering deco drains. When inspector inquired from complainant if she had approved, she stated that yes she did, although felt that she was being pressured to do so. Contractor stated that stated although did as was agreed, he will still assume responsibility and stated to this inspector and the complainant at the jobsite inspection, that it would be corrected and will ensure proper drainage in the area(s).

Complaint 6) Color work is so bad it doesn’t look (seems) to match: Complainant failed to provide documentation and or sample of color that was agreed upon. Contractor stated that stated although did stain deck and accent borders as contracted, he will still assume responsibility and stated to this inspector and the complainant at the jobsite inspection, that it would be corrected.

Addenda’s

Complaint 8) Contractor covered deck drains with grout: Areas with deco drains that have been covered with grout. Grouted over deco drain that was installed over existing landscape watering line on the N side of the deck next to fence, and now such landscape watering line is leaking and cannot be removed to affect repairs. Complainant failed to provide documentation to show that contractor was not to grout drains. Contractor stated that he assumed responsibility and stated to this inspector and the complainant at the jobsite inspection, that it would be corrected.[1]

Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(23). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing on November 21, 2013, at 8:00 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on November 21, 2013. Sandra Eastman testified on behalf of Complainants and submitted one exhibit. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence On October 20, 2011, Complainants entered into a contract with Respondent to install 1,760 square feet of stamped concrete at Complainants’ home. While the project started out well, Complainants began observing issues including the color of the concrete. When Respondent attempted to clean up the “gooey” substance it had applied in error, the material went into the pool and caused additional damage. Respondent also filled concrete in over the drains on the patio. Ms. Eastman testified that since the Corrective Work Order, Respondent had not returned to the jobsite and had not attempted to perform any corrective work. Inspector Cruz testified he was unable to perform a prehearing inspection because Complainants were not home. However, Inspector Cruz noted that some of the issues to the front patio were observable without entering the property. While he did not conduct a formal inspection, Inspector Cruz stated he believed the damage to the front patio was worse than it was at the initial inspection. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on December 11, 2013. Such prior License record reflects that Respondent’s License No. C-9.230315-R was subject to a finite suspension from April 8, 2013, through April 29, 2013, was on probation from April 29, 2013, through August 27, 2013, and was revoked on June 5, 2013, for failure to pay a civil penalty. Such prior License record also reflects that are four open complaints against Respondent’s license, one prior complaint that led to discipline, and three prior complaints that were resolved or settled. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. § 41-1092.04 and A.R.S. § 41- 1092.05(D). 3. Respondent’s revoked license does not deprive Complainants of their right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 4. 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 A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 5. The undisputed credible testimony established that Respondent departed from or disregarded any plans, specifications, or building codes in violation of A.R.S. § 32-1154(A)(2) when it filled concrete in over the drains on the patio. 6. The undisputed credible testimony established that Respondent did not install the stamped concrete patio properly. Therefore, Complainants established that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[2] 7. The undisputed credible testimony established that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(23).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Eurotech Decorative Concrete LLC’s License No. C-9.230315-R for a period of 30 days. Immediately following this period of suspension, Respondent’s license shall be placed on disciplinary probation for a period of 180 days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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, December 11, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The bold font portions of the quoted material are drawn from the complaint. The normal font portions of the quoted material are the inspector’s notes and directions to Respondent. All typographical errors in the original. [2] 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.” [3] 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.”

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