ALJDEC decisions subject to certification as final

2015A-1395-ROC · Registrar of Contractors · 2016-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 2016, at 1:00 p.m. APPEARANCES: Denny Pigneri Homes, Inc., (hereinafter “Complainant”) appeared through its owner, Denny Pigneri (hereinafter “Mr. Pigneri”). D D M Construction LLC (hereinafter “Respondent”) appeared through its authorized representative, Dustin “Dusty” Mathis (hereinafter “Mr. Mathis”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). 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 License No. B-195568-R and License No. CR- 9.192444-D. Respondent’s licenses are current as of March 10, 2016. This is a residential matter in which on or about July 25, 2014, Respondent performed concrete construction work at Mr. Pigneri’s residence located at 13058 N. 70th St., Scottsdale, Arizona 85254 (hereinafter the “residence”). Mr. Pigneri was dissatisfied with the concrete work performed by the Respondent and the Respondent agreed to install a concrete overlay over the concrete driveway at Mr. Pigneri’s residence. Mr. Pigneri was dissatisfied with the condition of the concrete overlay and Complainant filed a Complaint against the Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On May 13, 2015, 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:

Complaint #1 Poor finish on driveway.

Cracking at corner and delamination of overlay shall be corrected. Overlay should be installed per manufacturer’s instructions.

Complainant asserted that the Respondent failed to comply with the written Directive and requested that the Registrar to issue a Citation against Respondent’s licenses. On May 21, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: 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).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

The assigned Registrar Investigator, Steve Klein (hereinafter “Investigator Klein”), testified that he performed the original jobsite inspection at the residence. Investigator Klein stated that he observed that the Respondent had already installed an overlay over the concrete driveway. Investigator Klein said that consequently he was unable to observe the original finish on the concrete. Investigator Klein said that both parties agreed that the original concrete finish on the driveway needed work. Investigator Klein said that he observed that overlay was delaminating in areas and that the concrete driveway was cracking in one corner. Investigator Klein said that Respondent agreed to correct the overlay and the concrete cracking in the driveway. Investigator Klein testified that Respondent performed corrective work on the driveway at the residence and that he performed a compliance inspection on May 15, 2015. Investigator Klein said the new overlay had “slurried” and the Respondent agreed to perform further corrective action on the driveway. Investigator Klein testified that Respondent performed further corrective action on the driveway. Investigator Klein stated that he performed another onsite inspection and observed that the concrete overlay was “popping” and that the overlay had been splattered on the walls of the residence. Investigator Klein said that Respondent performed further corrective action at the residence. Investigator Klein testified that he performed another compliance inspection on August 20, 2015. Investigator Klein stated that he observed the same conditions. Investigator Klein said that he performed an additional onsite inspection on December 30, 2015, for a prehearing inspection and observed that things were just the same. Investigator Klein testified that he performed an additional prehearing inspection on or about February 22, 2016. Investigator Klein stated that he observed that there was still same concrete overlay issues of popping and delamination. Investigator Klein said there are now several concrete coatings on the concrete driveway. Investigator Klein said there appeared to be the same issues reoccurring on the driveway. Investigator Klein said that the concrete driveway still needs work. Investigator Klein said that the concrete finish can only be as good as the concrete under the concrete finish. Investigator Klein testified that Mr. Pigneri was not happy with the concrete finish on the driveway. Investigator Klein opined that Respondent had been responsive to the Registrar’s directions and Mr. Pigneri had been patient in working with the Respondent. Investigator Klein said that the driveway overlay still needs work. Investigator Klein’s testimony is found to be credible. Mr. Pigneri testified that the finish on his new concrete driveway was not installed in accordance with industry standards. Mr. Pigneri said that he informed Respondent that the driveway pour was not going to be successful when the concrete was poured. Mr. Pigneri he had been a general contractor for approximately 34 years and was very familiar with concrete installations. Mr. Pigneri testified that the concrete set up too quickly which caused a poor finish on the new concrete. Mr. Pigneri stated that Respondent agreed that the finish was unacceptable and that Respondent would apply a concrete overlay on the new concrete driveway and sidewalk. Mr. Pigneri said that he was opposed to the installation of the concrete overlay because the finish on the concrete was undulated and poor. Mr. Pigneri said that he agreed to allow Respondent an opportunity to correct the concrete rather than remove the concrete driveway. Mr. Pigneri testified that the first overlay failed. Mr. Pigneri stated that Respondent acknowledged that it was the wrong material and removed the first concrete overlay and installed a second concrete overlay. Mr. Pigneri said that the second overlay application had the same problems. Mr. Pigneri said that Respondent put another concrete surface on the driveway. Mr. Pigneri testified that the third concrete overlay was worse than the first two concrete overlays. Mr. Pigneri said that he would never leave a concrete project that looked like this with one of his new houses. Mr. Pigneri said that the concrete overlay on his driveway was not acceptable. Mr. Pigneri opined that the concrete overlay was never going to be right. Mr. Pigneri’s testimony is found to be credible. Mr. Mathis testified that original driveway was a little rough. Mr. Mathis said that 9 out of 10 people would have accepted the original driveway. Mr. Mathis said that the first concrete overlay was the wrong product and failed. Mr. Mathis said that Respondent removed the first overlay and applied a second overlay. Mr. Mathis said that the second overlay failed because it was not sealed. Mr. Mathis said that Respondent removed the second overlay and applied a third overlay. Mr. Mathis testified that Respondent applied a sealer over the third overlay which emphasizes the finish of the concrete. Mr. Mathis stated that Mr. Pigneri complained about popping and Respondent performed additonal corrective action to mitigate the concrete popping. Mr. Mathis said that the popping was largely where the overlay was applied over control joints in the driveway. Mr. Mathis said that Respondent had not been back to perform further corrective action because of weather conditions and Mr. Pigneri’s vacation. Mr. Mathis said that Respondent was willing to perform additional corrective action on Mr. Pigneri’s driveway. Mr. Mathis said that Mr. Pigneri said that he was not going to be happy unless the driveway was removed and replaced. Mr. Mathis said that driveway looks like most driveways in Mr. Pigneri’s neighborhood. 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). Investigator Klein credibly testified that he observed that the concrete overlay was delaminating in areas and that the concrete driveway was cracking in one corner. Investigator Klein stated that he had performed a prehearing inspection before the hearing for this matter an observed that the Complainant’s driveway still needed corrective work. Complainant established by a preponderance of the evidence that Respondent’s concrete work at Complainant’s residence fails to meet minimum workmanship standards. Complainant further established that Respondent failed to comply with the Registrar’s written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. B-195568-R and License No. CR-9.192444-D of Respondent shall both be suspended until the Registrar receives and accepts written proof that Respondent has fully complied with the written Directive issued in this matter. It is further recommended that if the Registrar receives and accepts written proof that Respondent has fully complied with the written Directive issued in this matter before the effective date of the Registrar’s Order that no license suspensions shall take place and this matter shall be closed. It is further recommended that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent 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 Respondent’s contractor’s licenses 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 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 five days from the date of the certification.

Done this day, March 10, 2016.

/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. 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.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

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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