ALJDEC decisions subject to certification as final

2012A-463-ROC · Registrar of Contractors · 2012-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: June 25, 2012, at 1:00 p.m. and July 5, 2012, at 8:00 a.m. APPEARANCES: Complainant Robert W. Tarrant appeared on his own behalf; Respondent Donald Marvin Walker dba Walker Stamp Concrete appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar” or “the ROC”) issued License No. K-9.237802-D to Donald Marvin Walker doing business as (“dba”) Walker Stamp Concrete (“Respondent”). 2. Robert W. Tarrant (“Complainant”) filed a complaint with the Registrar against Respondent concerning the stamped concrete driveway that he had constructed at Complainant’s house at 2325 South Jamaica Boulevard, Lake Havasu City, Arizona. 3. The Registrar assigned the complaint to its inspector, Cliff Corlett, for investigation. Inspector Corlett performed a jobsite inspection. On February 8, 2012, Inspector Corlett sent a letter to the parties informing them in relevant part as follows: After investigation, the ROC has determined that:

1. Concrete cracking does not exceed acceptable workmanship standards.

2. Concrete flaking. When the Complainant applied a chemical sealant to the concrete surface he accepted that surface.

3. Problem with sealer contractor bought. (Clouding & flaking) In this case the Respondent is considered to be a supplier. The Homeowner applied the finish. Any problem with the finish[ed] product, would be between the Homeowner and the manufacturer. The ROC does not have jurisdiction over material suppliers.

4. Per contractor concrete would not crack or have alkali problems. A review of the written contract does not support this claim. Concrete cracks. Alkali is a common problem in this area due to all of the salts and minerals in the soil and water.

5. Money owed to customer on unused sealer returned. This would be a civil matter as stated above the ROC has no jurisdiction over suppliers.

NO CONTRACTOR ACTION REQUIRED. RECOMMEND CASE BE CLOSED.

Based on the above, a citation will not be issued against the contractor at this time. However, you may request in writing, a further review of your complaint. If you have additional information to support your complaint, you should submit it with your request for review.

4. After Complainant requested a hearing, 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. 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 6. A hearing was held on June 25, 2012, and July 5, 2012. Inspector Corlett, Complainant, and Respondent testified. At the second hearing date, Complainant submitted six exhibits. Hearing Evidence 7. Inspector Corlett testified consistently with his February 8, 2012 letter to the parties. Inspector Corlett testified that he performed a prehearing jobsite inspection and that the condition of Complainant’s driveway was unchanged. 8. Complainant submitted an excerpt from the Registrar’s Workmanship Standards for Licensed Contractors (February 2009) for concrete, in relevant part as follows: 3. PD Cracking of garage slabs, carports, exterior slabs, patios, driveways and sidewalks.

AT Cracks in excess of 3/32” width or 1/8” vertical displacement or compound cracks in excess of 1/16” in width are not acceptable. . . .

CR If cracks in excess of 3/32” width are present (3/16” for sidewalks), or compound cracking in excess of 1/16” in width, or vertical displacement exceeds 1/8”[,] the affected areas are to be replaced.

Complainant submitted a photograph of a crack in his driveway in which a nickel had been inserted. 9. Inspector Corlett testified that the Registrar’s Workmanship Standards for concrete only applied to standard steel troweled or light broom finishes, not specialty finishes like the stamped concrete on Complainant’s driveway. Inspector Corlett testified that stamped concrete is constructed by placing rubber mats over the concrete before it has set to transfer patterns from the mats to the concrete, not by using a steel trowel or broom to finish the concrete surface. 10. Inspector Corlett testified that at the initial jobsite inspection, Complainant added the complaint that the driveway was not the 4” thickness that the contract required. Inspector Corlett testified that he would need a core sample or other destructive testing to determine the thickness of the driveway. 11. Complainant submitted a photograph that he testified showed an area of the driveway that was only 2-3/4” thick. Complainant did not ask Inspector Corlett about the photograph at the hearing or point out the area shown in the photograph to Inspector Corlett at the jobsite inspections. 12. Inspector Corlett testified that at the initial jobsite inspection, Complainant also added the complaint that the driveway had a dish or divot at the grade break. Inspector Corlett testified that the Registrar’s standards did not address such divot. Inspector Corlett testified that elevation of the driveway complied with the Registrar’s standards and that the driveway served its intended purpose. 13. Complainant at the hearing testified that although the contract required Respondent to use 50/50 mix cement, several cement suppliers and concrete contractors had told him that the cement mix that Respondent used on the driveway had aggregate in it that was smaller than the aggregate in 50/50 mix cement. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged contracting statute.[1] 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] 3. Complainant has not borne his burden to establish that Respondent constructed the stamped concrete driveway in a manner that was unprofessional or not workmanlike or that violated applicable building code or industry standards, in violation of A.R.S. § 32-1154(A)(3). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant Robert W. Tarrant’s complaint against Respondent Donald Marvin Walker dba Walker Stamp Concrete’s License No. K- 9.237802-D in Case No. 2012-463 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, July 24, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1154 to 32-1169. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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