Minute Entry - Vacate

2015A-3902-ROC · Registrar of Contractors · 2016-02-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2016, at 1:00 p.m. APPEARANCES: JMC Design and Excavation Inc. (“Complainant”) appeared through Normal Cenerini, its qualifying party and officer (“Mr. Cenerini”); Cima Holdings LLC (“Respondent”) appeared through its member, Massimo Sommacampagna (“Mr. Sommacompagna”). ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On May 21, 1997, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.123879-R for residential general contracting to Complainant. On February 15, 2013, the Registrar issued License No. KB-2.283452-D for dual residential and small commercial contracting to Respondent. Respondent’s qualifying party/employee is Antonio Sommacampagna (“Mr. Antonio”). Respondent’s sole member is Antonio’s son, Mr. Sommacampagna. On September 14, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had paid Complainant only $8,597.60 on its $9,448.00 contract to perform grading on a project at 1118 N. 11th St. in Phoenix, Arizona 85006, and that Respondent refused to pay the final $850.40 that was owed under the contract. Complainant explained that Respondent had backcharged $850.40 to pay for a broken sewer pipe. Complainant attached many documents to its complaint, including the signed contract, the grading and drainage plans for the project, a photograph of the broken pipe, and a letter. Complainant explained that the pavement elevation on the grading plan for the parking lot adjacent to where the sewer pipe exited the building was 93.60, but that the plans called out for 6” of ABC and 2” of asphalt on the parking lot, which meant that final subgrade needed to be 92.94. Respondent explained further that the elevation of the sewer pipe was 93.162, or 2 and 11/16 inches above the final grade of the parking lot. Complainant stated that the sewer line was covered by ABC spoils from compaction of the building pad and that neither Respondent nor its plumber had called Complainant’s attention to the location of the sewer pipe. On October 26, 2016, the Registrar received a preliminary response to Complainant’s complainant from Mr. Sommacampagna on behalf of Respondent. The letter stated that “[n]or from pure memory of an event that happened 1 ½ years ago does CIMA Holdings, LLC ever recall seeing that there was left over spoils on top of the sewer lines between buildings 3 and 2.”[1] Complainant subsequently requested a hearing on its complaint against Respondent. The Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation because Respondent should have seen or been aware of the sewer pipe. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. A hearing was held on February 26, 2016. Complainant submitted eight exhibits and presented Mr. Cenerini’s testimony. Respondent submitted one exhibit and presented Mr. Sommacampagna’s and Mr. Antonio’s testimony. Additional Hearing Evidence The project at issue is urban infill consisting of three buildings for townhouses on a 50’ x 200’ lot in a historic neighborhood in downtown Phoenix. Respondent was the owner/developer as well as the general contractor on the project. The buildings are separated by asphalt parking lots for future residents’ vehicles. Respondent’s proposal, which became the parties’ contract when Complainant accepted it, provided in relevant part as follows: Damage to Property -- [Complainant] will take reasonable precautions to minimize damage to the customer’s land and other property caused by our operations. If damages are incurred, Agent agrees that [Complainant] is not held responsible for repairs. If scheduling and time permits, [Complainant] has first option of returning to the job site to repair such damages. Agent will be responsible for the additional hourly and hard costs to [Complainant]. . . . .

Utilities and Pipelines – The utility companies will be notified in advance of excavating work by [Complainant]. While performing our field work, we will take reasonable precautions to avoid damage to subterranean structures, pipelines and utilities and any personal property. Agent or Homeowner is required to call Blue Stake five (5) business days prior to dig. Agent agrees to hold [Complainant] and its officers, employees and subcontractors harmless for any damages to such structures, pipelines, utilities, low voltage lighting, sprinklers, septic tanks, fiber optics, personal property or anything else installed by homeowner.[2]

Mr. Cenerini testified that when Complainant graded the building pads for the condominiums, it was required to ever-excavate the building pads by 5’ on each side of the building’s future footprint to allow the concrete subcontractor to achieve proper compaction of the soil and ABC. Respondent informed Complainant on Thursday, March 27, 2014, that Respondent wanted to start framing on the project on the following Monday and that if possible, Respondent should complete final grading of the parking lot so that the framers could place lumber in the area where Complainant was keeping its equipment pending the final grade.[3] Although Complainant’s crew was not available on Thursday or Friday, to accommodate Respondent’s construction schedule, Complainant performed the final grade of the parking lot on the following Sunday, March 30, 2014. No other trades were around when Complainant broke the sewer pipe. Complainant submitted the Grading and Drainage plans.[4] Mr. Cenerini testified consistently with the complaint about the finished elevation of the parking lot and the elevation of the sewer pipe. Respondent submitted a letter from the project engineer confirming Mr. Cenerini’s calculations.[5] Respondent did not present any evidence to dispute the elevations. Mr. Cenerini testified that the sewer pipe was located much higher than is usual and that the location likely resulted from the plumber’s need to achieve the required fall between the building and the older sewer line. Mr. Cenerini testified that in his experience, where the need for fall requires a high placement of a sewer line, a pump may be installed to move sewage uphill, which is expensive, or if a pump is not installed, at a minimum, the plumbing subcontractor or general contractor on the project should warn following trades, such as the grading subcontractor, about the high sewer line. Mr. Cenerini testified that no warning or notice was given. Mr. Cenerini testified that the only thing that municipal inspectors look for is that the sewer line has the required fall and that cleanouts are located in the proper locations. Mr. Cenerini testified that Respondent does not request Blue Stake before performing final grading of new construction because although the Blue Stake will identify the location of pipes, it will not provide their depths. Mr. Cenerini testified that in his 20 years’ experience in performing grading, because the ABC cannot be compacted 100% on top of a sewer pipe, the asphalt contractor must slurry around the pipe. Mr. Sommacampagna confirmed that Respondent paid the asphalt subcontractor to slurry around the sewer pipe. Mr. Sommacampagna testified that he knew that the sewer line was going to be “close” for the asphalt contractor. Mr. Cenerini testified that when he and his crew went to the site on Sunday to perform the final grading, he performed a visual inspection and took laser shots to determine the final grade of the area between the buildings. Mr. Cenerini testified that the concrete subcontractor had moved ABC spoils from the concrete pad onto the area next to the pad, where the parking lot would be located, so that the ABC could be used in the parking lot and that Complainant had saved $600.00 by reusing the ABC. Mr. Cenerini testified that the edge of the pipe exited the building pad at the bottom of the slab[6] and was covered by the ABC spoils; the sewer line was not visible to Complainant’s crew. Mr. Sommacampagna testified that since the sewer cleanouts were visible, Complainant should have known that the sewer line was nearby. Mr. Sommacampagna testified that a week before the Sunday when Complainant performed the final grading of the parking lot, all the plumbing was visible. Mr. Sommacampagna denied that any ABC covered the sewer line when Complainant performed final grading. The same plumbing subcontractor who initially installed the sewer line repaired it after Complainant broke it during the final grade at a cost to Respondent of $850.40. Administrative notice is taken of the Registrar’s public website. Respondent’s license is current and in good standing. This appears to be the only complaint pending against the license. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[7] Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence.[8] Respondent bears the burden of proof to establish affirmative defenses by the same evidentiary standard.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[11] Mr. Sommacampagna had only been running Respondent’s contracting operations for a year when Respondent performed final grading on the project. Mr. Sommacampagna was not on site when Respondent performed final grading. The plumbing may have been exposed a week earlier before the plumbing subcontractor filled its trenches. Mr. Sommacampagna acknowledged that the sewer line was “close” and that neither he nor the plumbing subcontractor warned Complainant about the location of the sewer line. Mr. Cenerini’s testimony that the sewer line was covered by ABC at the time Respondent performed the final grade was credible. Mr. Cenerini also testified credibly about general practices in the construction industry based on his 20 years’ experience. Respondent did not establish that Complainant actually observed or that Complainant should have known about the high location of the sewer line. Because Complainant established that the sewer line was not visible and that it had no other reason to suspect that the sewer line was located above the final grade of the parking lot on the plans, Complainant established that it should not be responsible for breaking the sewer line. Therefore, Complainant established that when Respondent backcharged Complainant $850.40 for breaking the sewer line, Respondent violated A.R.S. § 32-1154(A)(10).[12] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Cima Holdings LLC’s License No. KB-2.283452-D shall be suspended until it provides written proof to the Registrar that it has paid Complainant JMC Design and Excavation Inc. $850.40 by certified or cashier’s check. 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 five days from the date of that certification. Done this day, February 2, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Registrar’s electronic file at Lg Dups2.pdf. [2] Complainant’s Exhibit 1 at 1. [3] See Complainant’s Exhibit 8. [4] See Respondent’s Exhibit 6. [5] See Respondent’s Exhibit 5. [6] See Respondent’s Exhibit 4. [7] See A.R.S. § 32-1101 et seq. [8] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] See A.A.C. R2-19-119(B)(2). [10] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [11] Black’s Law Dictionary at page 1220 (8th ed. 1999). [12] A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .”

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

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