ALJDEC decisions subject to certification as final

2012A-436-ROC · Registrar of Contractors · 2012-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2012, at 8:00 a.m. APPEARANCES: Complainant Doug Baughman appeared on his own behalf; Respondent Majestic Stone Works LLC appeared through Raymond Lee Jones, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. C-5.252872-R to Majestic Stone Works LLC (“Respondent”). 2. On or about January 24, 2012, the Registrar received a Complaint against Respondent from Doug Baughman (“Complainant”) regarding its application of a product to the surface of the driveway at his residence at 5639 West Gambit Trail in Phoenix, Arizona. 3. Complainant attached to his Complaint a copy of Respondent’s proposal to “Prep and Key Cut Driveway” and to “Apply Epoxy Stone System (Multi Color Flint/Razor Back Red),” and his signed acceptance of the proposal dated March 2, 2010. The parties’ contract did not address control joints. 4. The proposal included numerous cleaning and maintenance instructions for the product, including the following: Hard water deposits have the potential to discolor decorative concrete surfaces if remaining wet for extended periods of time; therefore, the heads of landscape sprinkler systems should be set to deter excessive watering of decks, driveways, sidewalks, etc. Lay of the land should be graded to promote run off of water (rain or other sources) away from decorative concrete surfaces, with the same being true of roof drain gutters.

5. The Registrar assigned the Complaint to its inspector, Dennis Cook, for investigation. Inspector Cook performed a jobsite inspection and on February 17, 2012, issued a Corrective Work Order (“CWO”) to Respondent. The CWO required Respondent to take certain corrective action within fifteen calendar days, in relevant part as follows: Contractor to make the following corrections by appropriate means: 1- Correct the delaminated areas at the edges of the driveway where they occur. 2- Correct the cracking in the coating at all of the control joints.

No correction is required at this time regarding the following items: 1- "Waves, Ripples" in the overlay 2- Fading 3- Discoloration of existing pavers could not be confirmed to be glue residue.

6. On or about March 12, 2012, Complainant requested a hearing because Respondent’s attempts to repair the driveway “made it worse.” 7. The Registrar issued a Citation and Complaint against Respondent charging A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). 8. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. Respondent acknowledged that it did not timely comply with the CWO, but affirmatively alleged that “[w]e made several attempts to work on the customer’s driveway . . . , but the customer had other contractors working on his home for an extended period of time and the driveway was covered with plastic for a couple weeks.” With respect to the delamination of the product from the driveway, Respondent affirmatively alleged that “these areas we repaired are areas where the customer[’]s sprinkler is constantly hitting the driveway on a daily basis with water.” 9. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 10. A hearing was held on September 12, 2012. Because Inspector Cook had retired, the Registrar’s inspector, Jeff Wills, performed a prehearing jobsite inspection and testified at the hearing. Complainant submitted nine exhibits and testified on his own behalf. Respondent submitted one exhibit and presented the testimony of its qualifying party and member, Raymond Lee Jones. 11. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 24, 2012. Such prior License record reflects that Respondent’s license was current and that two complaints were pending against the license. Hearing Evidence 12. Respondent initially installed the product on Complainant’s concrete driveway in March 2010. 13. Mr. Jones testified that the product that Respondent applied to Complainant’s driveway was composed of aggregate stone bound with epoxy. Mr. Jones testified that Respondent’s workers applied the product so that it was approximately ⅜” thick and then hand-troweled the product until it was approximately ½” thick. 14. Mr. Jones testified that when Respondent first contracted to apply the aggregate product to Complainant’s concrete driveway, the driveway did not have any cracks, including in its control joints. Mr. Jones testified that after Complainant requested a seamless application of the project, Respondent applied the product over the entire driveway, including the control joints. 15. The parties agreed that Respondent did not immediately perform corrective actions to comply with the CWO and that Respondent’s access to the driveway later was blocked by another contractor, whom Complainant had hired to apply stucco to his house. The parties also agreed that eventually Complainant allowed Respondent to attempt to comply with the CWO. 16. Respondent repaired the control joints on the driveway that had cracked (CWO action Item No. 2) by cutting open the control joints and applying a rubberized flexible material designed to fill joints. 17. Inspector Wills performed a prehearing jobsite inspection on September 11, 2012. Complainant’s wife, Mrs. Baughman, and Mr. Jones attended the inspection. The Delaminated Areas (CWO Action Item No. 1) 18. Inspector Wills testified that Mrs. Baughman pointed out a few areas along both sides of the driveway near the sidewalk where the epoxy and stone aggregate had chipped off or delaminated. 19. Mr. Jones testified that moisture and evaporation create hydrostatic pressure that breaks down the aggregate product that Respondent had applied to Complainant’s driveway. Mr. Jones testified that the sprinklers along Complainant’s driveway needed to be adjusted so that they do not spray water onto the aggregate product. 20. Complainant testified that he had adjusted the sprinklers so that they did not spray water onto the driveway “last year.” 21. Mr. Jones testified that he asked Mrs. Baughman to turn on the sprinklers at the prehearing jobsite inspection to demonstrate their operation to Inspector Wills, but that Mrs. Baughman said that she did not know how to turn the sprinklers on. 22. Inspector Wills testified that one delaminated spot on the driveway was near a grassy area, where he assumed a sprinkler was present, but that there was also a delaminated spot on the opposite side of the driveway, near desert landscaping where there was no irrigation. Inspector Wills acknowledged that there were 1’ wide pavers between the grassy area and the aggregate product on the driveway. 23. Mr. Jones testified that when Respondent installed the aggregate product, brick pavers were installed along both sides of Complainant’s concrete driveway. Mr. Jones testified that Respondent made key cuts at the beginning and at the end of the driveway to apply a thicker layer of aggregate product at the edges to keep the product from shearing when a vehicle was driven over it. Mr. Jones testified that Respondent could not make a key cut along the edges of the driveway where the pavers were installed because the fit was so tight. Mr. Jones testified that moving the pavers was not an option that he would have chosen. The Control Joints (CWO Action Item No. 2) 24. Inspector Wills testified that the filler that Respondent applied to the control joints had a uniform texture and that although the width and symmetry of the filler in some locations varied slightly, Respondent’s repair of the control joints met the Registrar’s and industry standards. 25. Complainant disagreed with Inspector Wills’ opinion concerning the control joints. Complainant submitted photographs that showed that the width of the filler material that Respondent had applied over some of the control joints was slightly less than the width of a coin, while the width of the product that Respondent had applied over other control joints was slightly more than the width of the coin. Complainant testified that the quality of Respondent’s work on the control joints on his driveway was inferior to the quality of the work on his neighbors’ driveways. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged contracting statutes.[1] 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 3. Respondent did not establish that water from Complainant’s sprinklers caused the aggregate product to delaminate from the concrete driveway. Because Respondent contracted to install the aggregate product on Complainant’s driveway despite the presence of the previously installed pavers, the pavers do not void the warranty that Respondent must provide under A.R.S. § 32-1155(A) that the aggregate product will not delaminate for at least two years. 4. Complainant established that Respondent’s application of the aggregate product to the driveway was deficient in the areas that have delaminated. Therefore, Complainant established that Respondent’s work was unprofessional and not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[5] 5. Although Respondent repaired the delaminated areas once, Complainant established that in some of the repaired areas, the aggregate product quickly delaminated again. Because Respondent was eventually allowed access to attempt to repair the product to comply with the CWO, any delay by Complainant in providing access would not justify Respondent’s failure to fully comply with the CWO. Therefore, because Respondent’s repairs were not workmanlike, Complainant established that Respondent violated A.R.S. § 32-1154(A)(23).[6] 6. Complainant did not establish that Respondent’s repair of the control joints or any other aspect of the installation of the aggregate product on Complainant’s driveway violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, or A.R.S. § 32-1154(A)(23). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Respondent Majestic Stone Works LLC’s License No. C-5.252872-R shall be suspended until it repairs in a professional and workmanlike manner the areas on Complainant Doug Baughman’s driveway where the aggregate product has delaminated. It is further recommended that the Registrar not suspend Respondent’s license and, instead, close the complaint in Case No. 2012-437 if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is satisfactory to the Registrar that Respondent has repaired in a professional and workmanlike manner the areas on Complainant Doug Baughman’s driveway where the aggregate product has delaminated. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 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, September 25, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to 32-1169. [2] 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). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] 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.” [6] 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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826