ALJDEC decisions subject to certification as final

2014A-3336-ROC · Registrar of Contractors · 2015-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 1, 2015 APPEARANCES: Complainant Denco Dental Construction was represented by its authorized representative, member and qualifying party, Steven Anderson. Justin Pahtrick Allen DBA Desert Coatings appeared on his own behalf. Stephen Laughton, an investigator with the Registrar of Contractors, Lindsey Springfield, Complainant’s office manager, Luis Rodriguez, administrator of Desert Ridge Pediatric Dentistry and Eric Anderson, Complainant’s Field Superintendent, provided testimony as witnesses for the Complainant. Thomas Edmund Allen, Jr., Respondent’s father and superintendent, testified on Respondent’s behalf.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Denco Dental Construction (“Denco”) is a general contractor that contacted with Desert Ridge Pediatric Dentistry to construct its dental offices located at 5315 High Street, Suite 115 to 119, Phoenix, Arizona 85014. 2. Respondent Justin Pahtrick Allen DBA Desert Coatings holds Arizona Contractor’s License No. CR-5.183016-D. 3. On August 19, 2014, Steve Anderson, President of Denco, filed a complaint with the Registrar of Contractors alleging that he had entered into a subcontract with Respondent on March 18, 2013, to install an epoxy floor in the dental offices. The complaint alleged that work began on March 18, 2013, and was completed on August 29, 2013. After the dental office moved into the suite, personnel began to notice bubbles and cracks in the epoxy flooring. At the time of the complaint, Steve Anderson indicated that he had been asking Respondent to perform repairs for five months. 4. In response to the complaint, the Registrar of Contractors assigned investigator Kyle Pich to investigate these allegations. Pich was unavailable to testify at hearing as he had ceased working for the Registrar of Contractors in June 2015. Review of the file indicates that Pich conducted a jobsite inspection on November 26, 2014 and found that the epoxy floor failed to meet minimum workmanship standard due to bubbles and cracks present in the flooring. 5. On December 4, 2014, Pich sent Respondent a Directive from the Registrar of Contractors. The Directive stated in pertinent part that: 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. Bubbles and cracks in epoxy flooring. Investigator viewed spots of previous repair where flooring was wore off in a circular pattern, Investigator viewed bubbles in flooring with ridges exceeding 1/8” through work site. Investigator viewed cracks/cuts, scratches in flooring under normal lighting conditions from a distance of 6 ft. CORRECT ALL BY APPROPRIATE MEANS

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

6. Respondent attempted to repair the floor over Christmas 2014 and continued to work at fixing the floor for through New Year’s. While parts of the floor became solid, some of the repairs failed and bubbled up. 7. Pich performed a compliance inspection and January 9, 2015. Pich noted that places where bubbles had previously occurred now had puncture marks and that the floor now contained circular patterns and did not match in color. At that point, Pich forwarded the file to the Registrar of Contractors Legal Department for further processing and disposition. 8. On May 15, 2015, the Registrar of Contractors issued Respondent a Citation for Alleged Violation of Rule 4-9-108. 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).” The citation did not cite Respondent for failure to take corrective action. 9. Lindsay Springfield testified that she is the office manager for Denco and that she has responsibilities regarding bids from subcontractors. She recalled that Respondent was told of the need to perform moisture testing but said that Respondent never provided the results of any moisture test. 10. Luis Rodriguez testified that he is the administrator of Desert Ridge Pediatric Dentistry which contracted with Denco to construct its offices. He testified regarding the condition of the floor and the fact that a couple of months after the dental practice moved into its offices, he began to notice what looked like pebbles in the flooring. The pebbles then grew to bubbles that have continued to expand. Rodriguez noted that Respondent did attempt to fix the problems but said that new bubbles and pores have continued to form on the floor and grow in size. 11. Stephen Laughton testified that he is an investigator with the Registrar of Contractors. He said that because the investigator originally assigned to this matter had left the Registrar of Contractors in June 2015, he was given the file for purposes of testimony. Laughton agreed that he did not investigated the dental office on his own and had only reviewed the former investigator’s notes. Laughton maintained that Respondent had accepted the surface and put in the floor in question. He added that Respondent’s argument that the concrete pour-backs had failed under the floor could not be substantiated. Laughton indicated that the Registrar of Contractors does not require that destructive testing be done to substantiate allegations. Laughton noted it was clear that the condition of the floor as testified to by Rodriguez and shown in the Pich’s investigation failed to meet workmanship standards in that it had bubbles throughout. 12. Thomas Edmond Allen Jr. testified that he is Respondent’s father and that he acted as a superintendent regarding the installation of the floor in the dental office. He maintained that he had done the required moisture tests but they had come back as either completely useless or showing very little moisture. Allen agreed that he decided to go ahead with the floor and put in the flooring. He further acknowledged that the floor contained bubbles that he had tried to fix. Allen testified that his fix was unsuccessful in places and that the floor needed to be repaired or replaced. 13. In the course of argument at hearing, Respondent conceded that the floor did not meet minimum workmanship standards. He believed he should not be blamed for this failure because the concrete pour-backs appeared to be bad and put him between a rock and a hard place. APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with a possible violation of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108, the workmanship rule). That statutory section requires that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154(A)(3). That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards. CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar of Contractors to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar of Contractors, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible testimony established that when Respondent installed the epoxy flooring in the dental offices, he did so in a manner that resulted in bubbling of the floor and other problems. 4. Complainant established Respondent’s work installing the dental offices’ epoxy floor was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108.[1] 5. The record is undisputed that Respondent accepted the concrete surface before installing the epoxy floor. As a general principle in construction, a contractor who performs work on top of a surface prepared by another contractor accepts the surface. The second contractor should inspect the surface for any flaws or defects that would affect the work he proposes before performing the work. If he finds the surface to be unacceptable, he should call any defects to the owner’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the subsequent contractor may obtain an explicit warranty disclaimer.[2] In addition, after a second contractor has covered the original contractor’s work, the Registrar of Contractors cannot apportion fault because the second contractor’s work may have exacerbated or even caused the observed deficiency.[3] RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, Respondent's Arizona Contractor’s License No. CR-5.183016-D.shall be suspended for a period of two (2) 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 40 days from the date of the certification. Done this day, October 13, 2015.

/s/ Suzanne Marwil 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 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.” [2]No Arizona authority addresses the Registrar’s policy that a subsequent contractor who accepts a surface prepared by an earlier contractor also accepts full responsibility for the outcome. The policy is supported by case law from other jurisdictions. See generally cases cited at “Duty of Contractor to Warn Owner of Defects in Subsurface Conditions,” 73 A.L.R.3d 1213 (1976). A contractor who knew or should have known of a defect in the surface does not perform construction in a workmanlike manner if the contractor fails to notify the owner of the defect and the construction later fails due to the defective surface. See, e.g., Parker v. Thornton, 596 So. 2d 854, 858 (Miss. 1992); Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1199 (Alaska 1975). The principle is based on common sense and a need for fair dealings between contractors and property owners:

For the requirements of public order and the obligation implicit in every contract that the work will be done in a good and workmanlike manner would compel us to reject a contention that an undertaker is not responsible for building upon a site which he knows to be defective. In such a case, the barest standards of care would require him to bring the defect to the attention of the owner before proceeding. The owner would then have an opportunity to make the indicated adjustment in the contract to provide against the defective soil condition of which he had no prior knowledge. . . .

Wurst v. Pruyn, 202 So. 2d 268, 271-72 (La. 1967) (citation omitted).

[3] Courts in Arizona may apportion fault for construction defects among parties and non-parties under the Uniform Contribution Among Tortfeasors Act, A.R.S. §§ 12-2501 to 12-2509. The Registrar has no such statutory authority to apportion fault among contractors.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826