ALJDEC decisions subject to certification as final

2015A-915-ROC · Registrar of Contractors · 2016-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2015 and January 26, 2016, held open until February 16, 2016 APPEARANCES: On December 16, 2015, David and Lynn Sinnott, Complainants; Karen Palecek, Attorney for Respondent; Mike Aman and Elli Kalan, Respondent’s representatives; John Somerville, Respondent’s witness; Matt Gunstra, Registrar of Contractors Inspector; M. Giordano, observer. On January 16, 2015, Nat Clarkson, Attorney for Complainants; David and Lynn Sinnott, Complainants; Karen Palecek, Attorney for Respondent; Mike Aman and Elli Kalan, Respondent’s representatives ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ FINDINGS OF FACT 1. Complainants hired Respondent to install a very large paved driveway at their home. 2. On or about March 2, 2015, Complainants filed a complaint with the Registrar of Contractors against Respondent alleging that Respondent was not duly licensed to construct a new driveway, that unlicensed subcontractors performed all the work, that the driveway was not installed according to manufacturer’s specifications, that there was pitting, scratches, mortar spots, and discoloration on the concrete pavers, that Respondent used an insufficient amount of joint sand, and that the pavers interfere with drainage. 3. Registrar of Contractors Inspector Matt Gunstra held a job site inspection on April 2, 2015, at which both parties were represented. 4. On April 20, 2015, Inspector Gunstra issued a Directive from the Registrar stating, 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. Paver installation does not comply with ICPI (Interlocking Concrete Pavement Institute) installation guidelines as required by the paver manufacturer regarding the following: -depth of compacted aggregate base course less than 6” -ABC not installed under edge restraint footing -use of decomposed granite as bedding sand is not approved -bedding sand to be between ¾” to 1 ½” in depth -adjacent grade at edges of installation not flush or slightly below top of paver -some pavers are cut to less than 1/3 of a full paver 2. Several pavers are pitted, scratched, or have mortar stains on them 3. Polymeric joint sand not installed per contract 4. In certain areas, replaced pavers do not have sufficient joint sand around them 5. A small number of pavers in the field have less than 1/16” spacing between them and one location has excessive lippage at adjacent pavers. At the edge restraint course the pavers are tight fitting and are below the 1/16” minimum. 6. Near the garage one joint exceeds 3/16” where the paver has an uncut end

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Regarding Item 1, Inspector Gunstra testified that he found that Respondent should have followed (Interlocking Concrete Pavement Institute (“ICPI”) recommendations,[1] and this is the reason he found a violation. He acknowledged that the Registrar has not adopted any standards for interlocking paver installation for its workmanship standards handbook and that industry standards would apply regarding any potential violation of A.R.S. § 32-1154(A)(2), but he also stated that he would not consider ICPI recommendations to be a general industry standard. He noted that the ICPI recommendations specifically state that the booklet describing an ICPI installation is only a guideline and is not intended to be used as an industry standard. However, he said, the Phoenix Pavers pamphlet that stated that Complainants’ pavers would only be under warranty if installed using the ICPI standards. He also noted that it is considered a minimum standard to follow the manufacturer’s recommendations. Therefore, he found that ICPI standards applied to Complainants’ project. 6. Regarding Item 2, Inspector Gunstra testified that while some action was taken on it, Item 2 was not 100% complete. 7. Regarding Item 3, Inspector Gunstra testified that the contract called for polymeric joint sand for filling in between the pavers and it was not used. For this reason, it was included in the Directive from the Registrar. 8. Regarding the remaining items, Inspector Gunstra testified that Items 4, 5, and 6 were corrected. 9. Regarding Item 1 of the Directive from the Registrar, Complainants offered evidence that the ICPI recommendations were included in a brochure about pavers that Respondent provided to Complainants prior to making the contract. It stated that the pavers were warrantied only if the contractor followed ICPI guidelines when installing the pavers. In addition, Complainants established that Respondent’s representative affirmed to Complainants in a text that the price included ABC, thereby indicating the ABC would be used as well. It was undisputed that Respondent did not use ABC, it used other bedding materials under the pavers. It was also undisputed that the depth of the bedding material was not as deep as was called for in the ICPI recommendations. For these reasons and the other reasons set forth in the Directive from the Registrar, it was established that Respondent did not follow ICPI guidelines when installing Complainants’ driveway. 10. Mrs. Sinnott testified that they had a dirt driveway that kept washing out due to water and rain. She said it was never graded so when she met with Respondent’s representative Mike Aman, she discussed the need for grading. However, she acknowledged that she had no knowledge of technical installation or ICPI. When someone told her that having ABC under the pavers was a good idea, she texted Mr. Aman on November 5, 2014 and asked if Respondent’s proposal included “ABC for installation.” Mr. Aman responded that day stating, “It includes everything including sleeves, abc, Dg, mortared edges, everything done according to manufacturers specs, no hidden costs [sic]…”[2] 11. Mrs. Sinnott testified that she was concerned that if the driveway wasn’t done properly it would become uneven and get ruts in it. She said about 50 pavers are still damaged and in need of replacement. 12. Mrs. Sinnott testified about the various ways in which the installation varied from the ICPI guidelines, including the type and depth of bedding material and a soil compaction test. 13. Mrs. Sinnott testified that Respondent offered a $300 rebate for not using the polymeric sand but she estimated that the cost savings to Respondent would have been more like $3,000 to $4,000 and Complainants never agreed to eliminate it from the contract. 14. Mrs. Sinnott testified that on January 29, 2015, she met with John Somerville and Carl Huffman, both of whom worked for Phoenix Paver Manufacturing LLC. She said she showed them their pamphlet and asked about ICPI installation and they affirmed that it applies to their warranty. She said they also told her that they had not approved the driveway because they did not know how it was installed. She said Mr. Huffman stated that Phoenix Paver Manufacturers LLC would only cover the chipped pavers and that using ICPI standards was important. She said they talked about using DC as bedding sand and she was told that this is not acceptable. However, on December 14, 2015, Mr. Huffman swore an affidavit stating that he had reviewed the work completed by Respondent on a couple of occasions and that he was satisfied with the work and installation method and assisted and approved the Sinnot[t] Special Guarantee.[3] 15. Under cross examination, Mrs. Sinnott testified that she has not tried to get the remaining pitted pavers replaced under the special guarantee. She argued that not meeting the manufacturer’s standards is evidence that the driveway does not have structural integrity. But she also stated that she was not saying that following the ICPI guidelines is the only way to have structural integrity. 16. Complainant’s attorney argued that the special guarantee only guarantees the pavers themselves and not the installation. However, the manufacturer’s pamphlet[4] clearly states that the original guarantee is for the product only as well. Since Complainant brought the pamphlet and its guarantee forth at hearing as proof that the installation was defective, they cannot credible claim that the issuance of a special guarantee that offers the same type of coverage is somehow, now, not evidence of a proper installation. 17. Respondent offered the testimony of John Somerville and Mike Aman, professionals in the paving industry. Mr. Somerville is a sales representative for Phoenix Paver Manufacturing LLC, the manufacturer of Complainants’ pavers. He has worked as a paver installer for almost 15 years. He testified that he is familiar with the Registrar of Contractors’ workmanship standards and he was on a “committee of the ICPI local chapter that helped establish the standards for the ROC.”[5] Mr. Aman is Respondent’s owner and qualifying party. They both testified that there are no industry standards for the installation of pavers. They both stated that the installation in this case was appropriate for the area the home is located in. Mr. Aman stated that his installation was common for the area, that he is not an ICPI certified installer, and that the job would have cost much more if he would have bid it as an ICPI installation. In addition, Respondent requested that the manufacturer warranty the pavers despite the fact that the installation did not follow ICPI recommendations, and, after sending Carl Huffman to inspect the project, the manufacturer issued a special guarantee to Complainants that awarded the warranty based on the installation that was done.[6] Mr. Huffman also swore an affidavit as to his involvement.[7] 18. Regarding Item 2, Mr. Aman testified that he replaced several pavers but Complainants were never satisfied and the pits, marks and chips were very small. He said the overall appearance of the driveway was excellent. He did not dispute Mr. Gunstra’s testimony that the task was not yet 100% complete. 19. Regarding Item 3, Respondent did not dispute that polymeric joint sand was not used. Mr. Aman testified that he was afraid to use it because polymeric joint sand can cause irreversible damage to pavers if it gets wet and it had been raining during the installation. Consequently, he said, he gave a credit to Complainants for that item.[8] No signed change order for this item was provided. 20. No material evidence was provided to refute Mr. Gunstra’s testimony that Items 4, 5, and 6 were corrected. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32- 1156. 2. The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(2), (3), (and (22) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans, specifications or building codes “in any material respect that is prejudicial to another” without consent of the owner or his or her representative. 4. Regarding Item 1, Complainants established that ICPI guidelines do apply because Mr. Aman represented to Mrs. Sinnott in a text that manufacturer’s specs would be followed. It was not disputed that they were not followed. However, Complainants did not establish a violation because it was not established that Respondent’s installation method was material and prejudicial to Complainants. While the difference in the cost of an ICPI installation and Respondent’s installation is significant and the amount of labor and materials is significantly different, no evidence was presented to show that the effect of the two installation methods is likely to yield a materially different result. Even if the approximately 50 pavers that need replacing were damaged as a result of the installation method (which was not alleged or proven), this would not be a material difference considering the size of the driveway. Further, no professional evidence was presented to show that the installation will not last as long or stay attractive as long as an ICPI installation. The testimony of two witnesses who work in the paving industry established by the greater weight of the evidence that the installation was appropriate for the ground around Complainants’ home even though it did not comport with ICPI recommendations. For these reasons, the Administrative Law Judge finds that Respondent did not violate A.R.S. § 32-1154(A)(2) by failing to follow ICPI recommendations. However, if the Registrar finds, as Mrs. Sinnott argued at hearing, that failure to follow the ICPI guidelines is per se a material deviation and prejudicial to Complainants, it is recommended that the finding be limited to a remedy that would affect only the actual prejudice to Complainants and not a replacement of the entire driveway, which appears excessive considering that the contract was entered in November 2014 and the work was finished (other than some corrective work) in January 2015, yet no evidence was presented of any failure of the substrate other than a statement by Mrs. Sinnott at hearing that there had been some “rutting” and that statement was unsupported by any details, photographs, identification of location or testimony by any of the witnesses who saw the driveway, including the Registrar of Contractors Inspector, who was in agreement with Complainants on the installation method. Unfortunately, the Administrative Law Judge cannot recommend an appropriate remedy for that very reason. Other than a bare allegation, there is no evidence of actual prejudice to Complainants arising from the installation method. At most, Complainant should be required to extend the warranty on the installation method. 5. Regarding Item 3, Complainants did establish that Respondent deviated from the proposal, which served as part of the plans in this case. And Respondent did not obtain a signed change order that would have had the effect of changing that agreement and, consequently, the agreed upon plans. The proposal specified that polymeric joint sand would be used and Respondent did not disputed that it was not used. However, Complainants did not establish that the deviation was material or that it was prejudicial to them. In fact, they did not offer any material evidence to dispute Mr. Aman’s testimony that the polymeric joint sand could likely have caused permanent damage to the pavers. However, Complainants have not established that the deviation from the plans was material and prejudicial to the workmanship of the driveway because they failed to offer any evidence regarding the differences between polymeric sand and the product used by Respondent. Complainants might have established a material violation and prejudice against them if they had offered any evidence regarding the cost savings to Respondent by using the alternative produce. However, other than alleging that the price was thousands of dollars, Complainants offered no evidence of the actual costs involved. Therefore, Complainants have not established a violation of A.R.S. § 32-1154(A)(2) regarding Item 3 of the Directive from the Registrar. 6. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code, which contains those rules, requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. This provision relates to Items 1, 2, and 3. Regarding Item 1, Complainants did not establish that ICPI standards are the minimum workmanship standard for the installation of pavers. As noted above, that issue was properly evaluated by Inspector Gunstra under A.R.S. § 32-1154(A)(2).

7. Regarding Item 2, Complainants did establish a violation in that not all pavers with damage have been replaced. Mrs. Sinnott testified that about 50 pavers still needed replacing and Respondent’s representative, Mike Aman, did not dispute this. In fact, he admitted that he stopped replacing pavers because he began to feel that Complainants would never be satisfied. Therefore, Complainants established a violation of A.R.S. § 32-1154(A)(3) regarding Item 2 of the Directive from the Registrar. 8. Regarding Item 3, Complainants did not establish that using a different type of joint sand rather than the polymeric joint sand failed to meet minimum workmanship standards because they did not offer any material evidence to dispute that the compound used was not appropriate for that job considering the potential damage to the pavers if Respondent had used polymeric joint sand. Therefore, Complainants failed to establish a violation of A.R.S. § 32- 1154(A)(3) regarding Item 3. 9. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. Because Complainants only established a violation of Item 2, this provision relates only to Item 2. Complainants did establish a violation on this item because Respondent stopped replacing damaged pavers and it was undisputed that there are a few pavers that are still damaged. As noted above, Mrs. Sinnott testified that about 50 pavers still need replacing. Mr. Aman’s statement that the reason he did not replace the remaining pavers was because he lost faith that the Complainants would ever be satisfied is not recognized as a valid legal justification however common it may be to feel that way in contentious situations. Therefore, it was established that Respondent violated A.R.S. § 32-1154(A)(22) regarding Item 2. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license be suspended for one day for violations of A.R.S. §§ 32-1154(A)(3) and (22) regarding Item 2 of the Directive from the Registrar.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, March 1, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Exhibit A. [2] See Exhibit 3. [3] Exhibit C. [4] Exhibit 5. [5] Audio Record, December 16, 2015, between 2:57:30 to 2:58:00. [6] Exhibit 4. [7] Exhibit C. [8] Mrs. Sinnott testified that they did not receive a credit for that item. The proposal, Exhibit D, does not provide a price for the use of polymeric sand, but it does state that it will be used to lock the pavers in place.

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