ALJDEC decisions subject to certification as final

2014A-1372-ROC · Registrar of Contractors · 2015-09-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2015, at 1:00 p.m. APPEARANCES: Larry Don Price (hereinafter “Complainant” or “Mr. Price”) appeared on his own behalf. Saturn Concrete Construction LLC (hereinafter “Respondent”) was represented by its member and qualifying party, Ignacio Malave (hereinafter “Mr. Malave”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated Rule R4-9-108, entitled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby violated A.R.S. § 32-1154(A)(3) as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent is the holder of a Class CR-9 (279081) License issued by the Registrar of Contractors. This is a residential matter in which on or about October 25, 2013, Complainant contracted with Respondent for the construction of a concrete sidewalk and concrete pad at 14622 W. Catalina Drive, Goodyear, Arizona 85395 (hereinafter the “residence”). Respondent constructed the agreed-upon concrete sidewalk and concrete pad on or about November 6, 2013, and Complainant paid Respondent the agreed- upon contract amount of $2,513.28. Shortly after Respondent completed its construction work at Complainant’s residence, it rained. The Complainant noticed several areas were water was now ponding around his residence and that the concrete sidewalk prevented the opening of the doors of a storage building at the residence. Complainant notified Respondent of the water ponding problem and his dissatisfaction. Respondent returned to Complainant’s residence and attempted to resolve the water ponding at the residence. Respondent denied any responsibility for the water drainage problems at the residence. Respondent failed to resolve the water ponding and on April 7, 2014, Complainant filed a Complaint against Respondent with the Registrar of Contractors (hereinafter “the Registrar”). Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On September 24, 2014, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Doors on storage building do not open due to the height of concrete side walk. Concrete was poured above the bottom of the lowest part of the door. Correct by Appropriate Means.

2. Drainage out the front gate on east side of house does not drain. Standing water against the footing of the house. Correct by Appropriate Means.

3. Drainage on the west side of house does not drain over side walk. Standing water against the footing of the house. Correct by Appropriate Means.

Respondent failed to comply with the written Directive. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s license. On May 19, 2015, the Registrar issued a Citation for Alleged Violation of Rule R4-9-108 to Respondent. That Citation contained only one charge, in particular: “A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32- 1154(A)(3).” Mr. Price testified that the Respondent’s concrete work at his residence has caused drainage problems at the residence. Mr. Price said that he had repeatedly allowed Respondent to attempt to correct the drainage problems at this residence. Mr. Price said that Respondent’s efforts to resolve the drainage problems have only made the drainage problems worse. The assigned Registrar Investigator, Stephen Lawton (hereinafter “Investigator Lawton”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Lawton stated that he performed a compliance inspection at Complainant’s residence on January 27, 2015. Investigator Lawton testified that Respondent’s “fix” for the storage building to enable the doors to open was to place plywood under the building. The plywood is in direct contact with the concrete under the storage building and less than six inches from the soil. Investigator Lawton said that the wood should be pressure treated wood and that the wood would also have to be at least four inches above the soil. Investigator Lawton testified that the Respondent’s “fix” for the drainage on the east side of the residence was to put a pipe under the east side sidewalk on the other side of the gate. The drain pipe is below the existing grade and does not drain. Investigator Lawton testified that the Respondent’s “fix” for the drainage on the west side of the house was to cut the sidewalk and install pipe under the sidewalk. The Investigator could not verify whether the drainage problem had been resolved. Investigator Lawton observed that the ground was flat against the footing around Complainant’s residence. Applicable code requires 6 inches of fall from the foundation 10 feet out. Investigator Lawton said that when there is not the required 10 feet, a swale should be installed. Investigator Lawton said that the landscaping was installed by Complainant and was not Respondent’s responsibility. Investigator Lawton opined that Respondent did not comply with the Registrar’s Directive. Investigator Lawton’s testimony is found to be credible. Mr. Malave testified that the concrete work that was performed by Respondent was good work that complied with all workmanship standards. Mr. Malave said that Respondent should not be held responsible for the drainage problems at Complainant’s residence because Respondent is a concrete contractor, not a plumber. Mr. Malave reviewed the numerous repair efforts that Respondent had performed at Complainant’s residence. Two of Respondent’s employees testified that Complainant was initially very satisfied with Respondent’s concrete work and that Complainant’s wife gave each of them a forty-dollar tip. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on September 16, 2015. Such prior license record reflects that License No. 279081 is current. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 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. 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 established by a preponderance of the evidence that the concrete work performed by Respondent has created drainage problems at Complainant’s residence that do not comply with minimum workmanship standards and are in violation of applicable code requirements. Complainant also established that Respondents’ corrective effort on Complainant’s storage shed do not comply with minimum workmanship standards and code requirements. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3),[1] namely, A.A.C. R4-9-108.[2] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. CR-9.279081-D of Saturn Concrete Construction LLC shall be suspended for three (3) days. 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 five days from the date of the certification Done this day, September 16, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [2] 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.

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