ALJDEC decisions subject to certification as final

2012A-3145-ROC-res · Registrar of Contractors · 2013-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 2013, at 8:00 a.m. APPEARANCES: Robert Lawrence Knight (hereinafter “Mr. Knight” or “Complainant”) appeared on his own behalf. Advanced Concrete Creations LLC (hereinafter “Advanced” or “Respondent”) was represented by its qualifying party and member, Jason Denny Sonnenfelt. 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 Advanced is the holder of License No. K-5.221074-D issued by the Registrar of Contractors. Mr. Knight is the holder of License No. B.127738-R issued by the Registrar of Contractors. This is a residential matter where Mr. Knight was performing construction work at a residence located at 4349 Ocotillo Canyon Drive, Tucson, Arizona 85750 (hereinafter “the residence”). Mr. Knight retained Advanced to install a new concrete overlay over the existing swimming pool decking at the residence. The owner of the residence was dissatisfied with the concrete overlay work applied by Advanced and complained to Mr. Knight. Mr. Knight then complained to Advanced. When Advanced failed to resolve the homeowner’s dissatisfaction, Mr. Knight filed a formal Complaint against Advanced with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on July 24, 2012, directing Advanced to perform designated corrective work on the residence. The Corrective Work Order provided, in pertinent part, as follows: 1. Need paper work on care and maintenance: The respondent stated he would provide the paper work. 2. Repairs made due to peeling need to match in color and blend: A few areas of the repairs need to blend more uniformly. 3. All proud edges need to be knocked down: A few edges need to be knocked down. 4. One more coat of sealer applied per contractor: I could not determine if another coat was supposed to be applied. 5. X-Cel Deck warranty: Per the paper work on the product, No Warranty is implied to homeowner only to purchaser . . . who applies product. 6. Some areas don’t match in color and water spots: A few areas don’t match in color and some areas have spots caused by stain. 7. Crack on west end of pool deck: Crack needs to be repaired.

On July 26, 2013, the Registrar of Contractors issued an Order Setting Administrative Hearing (hereinafter “the Order”). The Order provided, in relevant part, as follows: On or about December 17, 2012, the Registrar received an Order Vacating Hearing from the Office of Administrative Hearings providing that during the scheduled hearing, the parties crafted a settlement agreement. Subsequently, the parties confirmed on record that they had reached a settlement, including submitting the signed agreement into the record.

On or about March 14, 2013, Complainant submitted to the Registrar written correspondence asserting that Respondent’s repairs had failed. The Registrar treated this submission as a request to re-open and set for hearing.[1]

Upon review and consideration of this request, as well as the entire file in this matter, IT IS ORDERED that an administrative hearing be scheduled in the expedited course of docketing in the Tucson area. At the administrative hearing, the parties may offer evidence and testimony as to whether or not Respondent has engaged in conduct in violation of A.R.S. § 32-1154(A)(3), namely R4-9-108 and A.R.S. § 32-1154(A)(23) as set forth in the Citation and Complaint, and further breached the terms of the parties’ settlement.

Testimony of Registrar Inspector Mike Nieves Inspector Nieves testified that he did not know if Advanced had supplied the care and maintenance paper work for the concrete overlay material utilized at the residence. Inspector Nieves testified that the parties had entered into a Settlement Agreement on or about January 15, 2013, for Advanced to fully comply with the terms of the Corrective Work Order. Inspector Nieves stated that he performed an onsite inspection at the residence on March 22, 2013, to examine the corrective work that had been performed by Advanced at the residence. Inspector Nieves reviewed each item on the Corrective Work Order. Inspector Nieves testified that he observed that the repairs that Advanced had performed on the concrete overlay to correct peeling had failed. Inspector Nieves stated that the concrete overlay was still peeling and required appropriate corrective action by Advanced. Inspector Nieves testified that Advanced had failed to comply with item number two of the Corrective Work Order. Inspector Nieves testified that the proud edges have been corrected by Advanced. Inspector Nieves stated that Advanced had complied with item number three of the Corrective Work Order. Inspector Nieves testified that some areas of the concrete overlay do not match the surrounding areas of the concrete overlay. Inspector Nieves stated that he observed several water spots and stains on the concrete overlay. Inspector Nieves testified that Advanced had failed to comply with item number six of the Corrective Work Order. Inspector Nieves testified that the crack in the concrete overlay at the west end of the swimming pool decking had not been properly corrected and still required correction. Inspector Nieves stated that Advanced had accepted the concrete decking as an appropriate service to install the concrete overlay on. Inspector Nieves testified that Advanced was fully responsible for the proper correction of the crack in the concrete overlay. Inspector Nieves testified that Advanced had performed some corrective work at the residence but that the corrective work performed by Advanced failed to properly correct the concrete overlay peeling, the mismatched color in the concrete overlay, the water spots, the stains, and the crack in the overlay at the west end of the swimming pool decking. Inspector Nieves opined that Advanced had failed to comply with the terms of the Corrective Work Order and the parties’ settlement agreement. Inspector Nieves’ testimony is found to be credible. Testimony of Robert Lawrence Knight Mr. Knight testified that Advanced had been given access to the residence. Mr. Knight stated that Advanced had failed to correct the peeling of the concrete overlay on the swimming pool decking. Mr. Knight acknowledged that Advanced had performed some corrective work on the peeling in the concrete overlay. Mr. Knight testified that the corrective work performed by Advanced on the peeling in the concrete overlay had failed to resolve the problems with the peeling of the concrete overlay. Mr. Knight stated that the peeling of the concrete overlay had increased and that new areas were peeling. Mr. Knight testified that the repaired areas of the concrete overlay did not match the color of the surrounding areas of the concrete overlay. Mr. Knight stated that there are still spots and stains on the concrete overlay that have not been corrected. Mr. Knight testified that the crack in the concrete overlay at the west end of the swimming pool decking had not been properly corrected and that the same crack was still present. Mr. Knight stated that the crack repair performed by Advanced had failed. Mr. Knight testified that he believed that Advanced was fully responsible for the proper correction of the crack. Mr. Knight opined that Advanced had failed to comply with the terms of the parties’ settlement agreement. Testimony of Jason Denny Sonnenfelt Advanced’s qualifying party, Jason Denny Sonnenfelt (hereinafter “Mr. Sonnenfelt”), testified that there was no paper work for the care and maintenance of the concrete overlay material applied by Advanced at the residence. Mr. Sonnenfelt stated that he had provided instructions to the homeowner for the proper care and maintenance of the concrete overlay. Mr. Sonnenfelt testified that Advanced repaired all of the peeling areas of the concrete overlay in January 2013. Mr. Sonnenfelt stated that the repairs to the concrete overlay had failed because of the salt water that was constantly splashed on the concrete overlay and the homeowner’s use of a wheel chair on the concrete decking. Mr. Sonnenfelt acknowledged that he knew that the homeowner used a wheel chair and that the swimming pool at the residence was a salt water swimming pool before Advanced performed any construction work at the residence. Mr. Sonnenfelt acknowledged that some areas of the concrete overlay did not match the color of the surrounding concrete overlay. Mr. Sonnenfelt stated that the repaired areas of the concrete overlay were the same color as the surrounding concrete overlay. Mr. Sonnenfelt testified that the sun would eventually cause the new repaired areas of the concrete overlay to blend in with the surrounding area. Mr. Sonnenfelt acknowledged that the repair to the crack in the west end of the concrete overlay had failed. Mr. Sonnenfelt testified that the repair to the crack in the concrete overlay had failed because the concrete decking had settled and cracked. Mr. Sonnenfelt stated that Advanced should not be responsible for the repair of the crack in the concrete overlay because Advanced did not cause the crack in the concrete decking. Mr. Sonnenfelt testified that that he had great difficulty in communicating with Mr. Knight. Mr. Sonnenfelt stated that Mr. Knight was not responsive to his telephone calls and that Mr. Knight failed to attend scheduled meetings with Mr. Sonnenfelt. Testimony of Dennis Seago Dennis Seago (hereinafter “Mr. Seago”) testified that he had thirty years experience in the construction industry. Mr. Seago testified that he had worked for Advanced for three years. Mr. Seago stated that the cause of the peeling of the concrete overlay was the salt used in the salt water swimming pool. Mr. Seago testified that the areas of peeling were located by the areas that the homeowner utilized to get into and out of the swimming pool. Mr. Seago testified that the repaired areas of the concrete overlay would eventually match the color of the surrounding concrete overlay. Mr. Seago stated that the crack in the concrete overlay was because the concrete deck under the concrete overlay had cracked. Administrative notice is taken of Advanced’s prior license record as reflected on the Registrar of Contractors’ public website on October 28, 2013. Such prior license record reflects that License No. K-5.221074-D of Advanced 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. The concrete overlay applied by Advanced Is peeling and the repaired areas of the concrete overlay do not match the color of the surrounding concrete overlay. There are water spots and stains on portions of the concrete overlay. There is a crack in the concrete overlay on the west end of the swimming pool deck. This Tribunal concludes that Advanced violated the charged provision of A.R.S. § 32-1154(A)(3),[2] namely, A.A.C. R4-9-108.[3] 4. Advanced failed to properly comply with the terms of the Corrective Work Order and the parties’ settlement agreement. This Tribunal concludes that Advanced violated the charged provision of A.R.S. § 32- 1154(A)(23).[4] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. K-5.221074-D of Advanced shall be suspended until the Registrar of Contractors receives and accepts written proof that Advanced has fully complied with the terms 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, Advanced 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, in addition to the above-provided penalties, if any, that Advanced pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Advanced to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Advanced’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Advanced, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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 29, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] The Registrar never actually closed this matter, but such course of action would have resulted in an order of closing based upon the ALJ’s Order dated December 17, 2012. [Footnote in 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, violation of any rule adopted by the registrar. [3] 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.

[4] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other 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.

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