ALJDEC decisions subject to certification as final

2015A-3387-ROC · Registrar of Contractors · 2016-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 14, 2016 conducted via internet webcast and telephonically. APPEARANCES: Complainant personally appeared pro per. The Respondent, Joseph Clark Wells, owner and qualifying party, appeared personally and was represented telephonically by Mr. Dan W. Montgomery, Esq., 432 East Speedway Boulevard, Tucson, Arizona 85705-7492. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent. Joseph Clark Wells (Respondent) is the holder of License No. 240036 [CR 69-Asphalt Paving] first issued December 4, 2007 by the Arizona Registrar of Contractors (Registrar). 2. On or about April 3, 2015, Albert W. King (Complainant) entered into an oral contract with the Respondent to apply chip seal to the Complainant’s then existing asphalt residence driveway. 3. On or about August 3, 2015, the Registrar received a Complaint against Respondent from Complainant alleging Respondent [performed poor work and claiming Respondent’s abandonment of the oral contract. 4. The Registrar assigned the complaint to Investigator Jim Diamond Sr. Construction Investigator for Yavapai County. On or about September 30, 2015, after conducting a jobsite inspection on August 25, 2015, Investigator Jim Diamond issued a Written Directive to Respondent that provided 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: Item- The chip seal driveway has delaminating aggregate resulting in bare areas throughout. The respondent is to correct the condition in an appropriate manner.

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

Following the issuance of the written directive, Respondent did not correct the condition specified by the Written Directive. On or about November 2, 2015, the Registrar issued a Citation against Respondent, charging possible violations of Rule 4·9-108, Arizona Administrative Code, titled "Minimum Construction Standards,"1 and thereby a violation of 19 A.R.S, § 32.1154(A)(3)2 and for violating A.R.S, §32·1154(A)(22).3 A hearing was held on June 26, 2016. Sr. Investigator Jim Diamond testified that at his compliance inspection he observed the drive way’s chip seal aggregate had delaminated back to the original underlying asphalt surface in places and that oil comes through the aggregate stone leaving bare patches throughout the driveway. Sr. Investigator Diamond noted that aggregate poking through has caused a “slot drain” down the drive which at the driveway’s end results in an area full of aggregate. Mr. Diamond testified that he understood the Complainant has refused entry or access to his property to inspect or repair the chip sealed driveway. Complainant testified that by an oral agreement the engaged the Respondent to apply chip seal to his asphalt driveway [The Agreement]. The Complainant presents numerous photographic exhibits [C20 through C55] depicting the Complainant’s driveway in support of his testimony that the work performed by the Respondent failed in the same respects and to the same the degree testified to by Sr. Investigator Diamond. Complainant explained that numerous attempts were made to set a date and time for the Complainant to return to the site to correct the issues identified in the Inspector’s Written Directive, but each time the Respondent failed to appear. The Complainant testified on cross-examination that he did eventually refuse and continues to refuse access to the job site by the Respondent. The Complainant has obtained two estimates to repair the chip seal work performed by the Respondent, one from Specialty Paving and Grading LLC, [Exhibit C5] and another from Grady’s Quality Excavating, Inc. [Exhibit C-5- 2]. Both estimates, however, called for stripping off the chip seal that remains and replacing the surface with asphalt. The Complainant did not contract with the Respondent for asphalt resurfacing. The Complainant knowingly contracted for chip seal and it is chip seal that the Respondent provided. The Complainant demands and now expects the Respondent to resurface his driveway with asphalt. There is no evidence presented that Respondent contracted to provide asphalt under The Agreement. The Respondent testified that Asphalt Paving Service orally contracted with the Complainant to provide a chip seal resurfacing of the Complainant’s driveway and completed the chip seal job on April 3, 2015. Subsequently, in August, 2015, the Respondent received notice from the Registrar of Contracts that the Respondent had filed the instant Complaint. The Respondent testified that he had attempted contact with the Respondent to resolve any issues rose, but that the Complainant was out of the area for a month on vacation. Attempts were also made by the Respondent to connect with the Complainant by e-mail as well. The Respondent testified that he has repeatedly stated that he is willing and able to comply with the Registrar’s Directives – at no additional charge to the Complainant. But, the Complainant has and continues to refuse access to the job site by the Complainant. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on Jun 14, 2016. Such prior License record reflects that Respondent’s License No. 256686 was first issued on December 4, 2007. Respondent’s license was suspended for non- renewal from 01/01/2014 through 01/15/2014; was suspended for lack of bond from 12/15/2012 through 04/24/2013; was suspended non-renewal from 01/01/2012 through 02/09/2012; was suspended from 12/23/2009 through1/7/2010 for lack of bond and was suspended from 1/1/2010 through 1/22/2010 for non-renewal.

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. There is no credible evidence presented at hearing which established that at the time of the complaint that Complainant’s project was abandoned. To the contrary, the weight of evidence at hearing demonstrates that the “chip seal” project was completed by the Respondent. Thereafter, the Complaint was filed, Mr. Diamond inspected the site and issued his Written Directive to the Respondent. However, the Complainant has and continues to deny the Respondent access to the job site to assess the job or to perform the items listed in Investigator Jim Diamond’s Written Directive to Respondent.

4. Complainant DID NOT prove by a preponderance of the evidence that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).[1] 5. The Complainant DID NOT establish that Respondent abandoned this contract or in any way violated A.R.S. § 32-1154(A)(22).[2] 6. There is not credible evidence sufficient to prove that chip seal on this driveway was not fit for use or that the standard in the industry was to use only asphalt surfacing. 7. As to the question of poor workmanship, the evidence established that the chip seal aggregate that was applied by the Respondent had delaminated back to the original underlying asphalt surface in places and that oil comes through the aggregate stone leaving bare patches throughout the driveway. Moreover, at the time of Mr. Diamond’s inspection, aggregate was poking through which has caused a “slot drain” down the drive which at the driveway’s end results in an area full of aggregate. 8. Therefore, the Complainant DID establish that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[3]

RECOMMENDED ORDER Based on the foregoing, it is recommended that starting on the effective date of the Order, the Respondent’s License No. 240036 [CR 69- Asphalt Paving] shall be suspended unless, before the effective date of the Order, the Respondent provides proof by evidence satisfactory to the Registrar of Contractors that the items listed in the August 25, 2015 Written Directive to Respondent issued by Inspector Jim Diamond have been completed, to wit: You are hereby directed to remedy the following violations by the appropriate means: Item- The chip seal driveway has delaminating aggregate resulting in bare areas throughout. The respondent is to correct the condition in an appropriate manner.”

The Complainant shall permit access by the Respondent in order to comply with the August 25, 2015 Written Directive to the Respondent. 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, June 27, 2016.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [2] A.R.S. § 32-1154(A)(22) 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.” (Emphasis added). [3] 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.” 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.”

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