ALJDEC decisions subject to certification as final

2016A-3102-ROC · Registrar of Contractors · 2017-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kent L Keyfauver,

COMPLAINANT,

v.

Jake's Construction Inc.,

License No: 220535, 226438

RESPONDENT.

No. 2016A-3102-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 23, 2016

APPEARANCES: Kent L. Keyfauver, Complainant. Ray Thomas and Wayne

Cummings on behalf of the Complainant. Jacob Kile, Respondent and Qualifying

Party for the Respondent. Cliff Corlett, Investigator, Arizona Registrar of

Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson, Esq.

_____________________________________________________________________

FINDINGS OF FACT

On November 8, 2016, the Registrar of Contractors (“ROC”) issued a “Notice of Hearing” setting the above-captioned matter for hearing at 8:30 a.m., December 23, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint.

Respondent, Jake's Construction Inc., holds license numbers 220535 and 226438 issued by the Registrar of Contractors [ROC]. Jacob Kile is the Qualifying Party and owner.

Complainant Kent L. Keyfauver owns property located at 10795 South Bravo Road in Kingman, Arizona. The property is not located within the City of Kingman, but is located in a remote portion of Southeast of Kingman in Mohave County, Arizona.

The Respondent contracted with the Complainant, in writing, on or about June 27, 2016 to pour a 40’ by 46’ cement slab foundation for a metal building intended by the Complainant to be used as a residence; provide all grading, footer preparation, rough plumbing for the project, and construction of steel building arches purchased by the Complainant from Steel Master USA. As an addendum to the agreement, the parties also agreed that the Respondent would also dig trenches for a well pump electrical improvement, septic connection and water line.

On July 11, 2016, Respondent commenced work at the job site. The cement pour commenced on July 15, 2016.

Several cement trucks were required to execute the cement pour. The trucks arrived both later than ordered and appeared at approximately the same time rather than at separate times, such that as the cement was being poured by one truck there was no time lag between pours. Moreover, it was alleged that the cement being poured had begun to “set-up” by the time the trucks arrived resulting in the poured cement curing as it was being applied.

At or near the time of the cement pour it was brought to the attention of the Respondent that extra for footing that appeared on plan drawings had been overlooked and missed. The Respondent failed to note required the footing on the approved plans when he submitted his bid. The Respondent built and finished the overlooked footers and required payment in the amount of $2,000.00 by the Complainant as an extra. The Complainant paid the $2,000.00 for the overlooked footers and now complains that he should not have had to pay for Respondent’s error.

On August 18, 2016, the Complainant filed his complaint with the ROC alleging Respondent’s poor workmanship causing the poured cement foundation to be out of tolerance as to grade, wavy, and otherwise so defective as to prevent both the laying of flooring on the slab and to prevent the installation of the metal building according to manufacture standards.

The Respondent met with the Complainant and agreed the slab was out of reasonable tolerance. At hearing in this matter, Respondent again admitted that the foundation slab was out of grade in places, wavy in others and needed repair. Respondent offered to repair the slab by grinding and resurfacing it. Complainant was of the opinion that grinding and resurfacing the slab did not meet his approval and demanded that the entire slab be removed and re-poured. Such repair as required by the Complainant would necessitate that the electrical and plumbing rough-out would also be torn up and require replacement.

The Complainant wrote Respondent to advise he would not allow the Complainant to undertake repair. In his October 3, 2016 e-mail to the Respondent’s written request to return to the jobsite to undertake repairs, the Complainant stated he would not permit the Respondent to grind and resurface the foundation slab. Complainant had undertaken to retain others to perform the repairs and remainder of Respondent’s contract.

In response to the complaint, ROC Investigator Cliff Corlette conducted a job-site inspection on September 18, 2016. The Complainant was present for the inspection.

Mr. Corlette determined that certain portions of the Respondent’s work may constitute violations of workmanship standards.

On September 19, 2016, ROC issued a “Written Directive” showing that Respondent’s work did not meet minimum workmanship standards as follows:

Respondent formed and poured a 40 x 46 concrete slab and footings for a steel building to be installed by others....The slab the Respondent installed is wavy well beyond the allowable tolerances for concrete slabs adopted by industry standards and the Registrar of Contractors....Floors should not vary from flat more than 1/4-inch over a 10-ft area provided the deviation is gradual. Deviations, dips or sags over short distances and easily visible to the eye may be considered unacceptable. Respondent should correct by appropriate methods.

Poor finish of concrete. Complainant stated that all the floor area was [sic] going to be covered by floor covering. Since that is the case then the aesthetics of the floor are not as important to the roc as the flat and level standards. Floors should be level within 1/4-inch in any 12-foot run. Respondent should correct by appropriate methods.

Corners broken off edge of slab. Chipped or broken corners in concrete may occur during construction. These chipped and broken corners are unacceptable at time of move in. Respondent should correct by appropriate methods.

Slab has cold joints that will allow water to migrate into flooring. Concrete is pours [sic] and will allow moisture to wick to the floor surface with or without cold joints. No plans or specifications were submitted to indicate that the Respondent was to install any vapor barrier. No contractor action required.

Charged extra for footing that were on plan that Respondent missed. If the Respondent failed to note required footing on the approved plans when he submitted his bid, then the Complainant should not be required to pay additional monies for those footings.

ROC’s Directive required Respondent to remedy the listed items noted in the Directive using appropriate methods. The Directive required Respondent to provide ROC with written proof of its compliance with the Directive prior to 5:00 p.m. October 5, 2016.

The Directive also shows that no other items in the complaint were verified and that no corrective action was required for those other items.

Although the Respondent was and is willing and able to comply with the Directive, the Complainant has refused to allow repairs to be performed because the Complainant prefers and requires that the slab be demolished and re-poured rather than be grinded and re-surfaced as proposed by the Respondent. Thus, the Respondent did not comply with the ROC’s directive.

On October 17, 2016, ROC issued the Citation at issue in this matter notifying Jake's Construction Inc. that the following statutory provisions and rules may have been violated:

Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

A.R.S. § 32-1154(A)(22).

On October 28, 2016, Respondent timely filed its Response to the Citation stating he has “...tried to fix this concrete job by industry standards. I was told by customer Kent Keyfauver to not fix the concrete with grinding or leveling compounds. He refused to accept this as a repair to concrete.”

At the hearing, Inspector Corlett provided telephonic testimony that was consistent with his “Jobsite Inspection Notes” dated September 12, 2016 that he had prepared and which tracked his comment that are contained in the Citation referred to hereinabove in Paragraph 12.

At the hearing, Mr. Corlett testified that it was his opinion that the Respondent’s proposed repair of the concrete slab by grinding and resurfacing is an appropriate fix which meets ROC and industry standards. He testified that in this case there appeared no dispute that the concrete slab was below standard needing repair. The dispute was not that the work needed repair, but rather, what method of repair was required.

Mr. Corlett testified that he noticed no cracks in the cement on his inspection and noted that no water was visible on the slab. However, he stated, even perfectly finished concrete slabs will allow moisture.

Mr. Corlett’s opinion is that grinding and filing with appropriate resurfacing is an appropriate method to repair this job. He stated that the Respondent did not refuse to repair this job as directed, instead he refused the method demanded by the Complainant.

On cross-examination by the Complainant, Mr. Corlett stated that whether a Contractor is financially unable to repair it work because of prohibitive costs or whether the Complainant would be required to seek relief from the ROC Recovery Fund does not alter or impact his opinion that grinding and filing with appropriate resurfacing is an appropriate method to repair this job.

Mr. Jacob Kile testified that he admits there are defects in the concrete slab and that the work was not up to workmanship standards. However, he said he has done his best to accommodate both the Complainant and ROC by attempting to provide a repair that is, in his opinion, a proper and correct remedy and which is a remedy supported by the ROC Inspector.

Mr. Kile asserts that he did not willingly fail to comply with the ROC’s directive. To the contrary he states, he has been and is willing and able to comply with the repairs directed by grinding and filing with appropriate resurfacing. However, the Complainant refuses to allow him to do the repairs.

The Complainant called Mr. Ray Thompson to testify. Mr. Thompson qualified as an expert in the area of floor coverings, content of substrate repairs and integrity of cement.

As foundation for Mr. Thompson opinions, he testified that he reviewed documentation from the concrete supplier that reported the mixture content of the concrete poured on Complainant’s job site, he reviewed the complaint along with its associated documents; the Inspector’s report and the ROC’s directive and viewed the job site.

It is Mr. Thompson’s opinion that the top of the concrete poured on this site dried at a different rate than the underlying portion, thus causing the surface to have wavy defects. He also testified that the late arrival and the back-to-back timing of the truck pouring of concrete created a cold joint in the cement which is additional evidence of poor workmanship.

It was the opinion of Mr. Thompson that the only appropriate method to repair the work was to demolish some or all of the entire slab and then re-pour the concrete correctly. He did not offer an opinion about how much or which part of the slab required demolition. He rejected the method offered by the Respondent and approved by the ROC inspector to grind the unlevel defects in the slab and then resurface the area because there is a risk of delamination of the concrete such that adhesion of resurfacing products would fail.

The Complainant called Mr. Wayne Cummings, of Cummings Contractors, LLC, an Arizona Contractor. Mr. Cummings testified telephonically that he had been a supervisor for the placement of metal buildings onto concrete slabs for three years. No effort was made to qualify this witness as an expert. Mr. Cummings was of the belief that attempting to place a metal building onto the concrete slab on this site would damage the building channel because the edges of the slab varied so much in elevation. He stated that if the metal channel on a building is not flat, water may leak into the building. On Cross-examination, he admitted that he does not install flooring on concrete. He further stated that it is possible to grind an un-level slab to specification to fix a channel placement for metal buildings.

Respondent’s Case-in-Chief consisted primarily of the testimony of the qualifying party, Jacob Kile. Mr. Kile emphasized that he is well aware that the resulting effect of his supervision of the concrete pouring in July 15, 2016 was to create a concrete slab that was wavy and substandard. He admits his poor workmanship was the cause. He has agreed to grind and resurface the concrete slab. The Complainant demands instead that he demolish the slab and re-pour it.

He reiterated that he has always been ready and willing to make repairs to his work, but complains that the Complainant steadfastly refused to allow him to return to the job site to do repairs.

Regarding Complainant’s payment to Respondent of $2,000.00 above and beyond the bid amount for what Respondent determined to be an “extra” to build additional footers when the footers were drawn on site plans at the time of the bid, Respondent admits he made an error in failing to see the footers in site plans and that the expense to build the footers should have been part of his original bid rather than an extra expense. He apologized for his error and is willing to credit the Complainant for the $2,000.00 payment. The Respondent testified he has not been paid by the Complainant for any of the Concrete work or supplies that Respondent provided.

CONCLUSIONS OF LAW

The Complainant bears the burden of proof. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

The preponderance of the evidence shows that for the items in the ROC’s directive, Respondent’s work was not done in professional manner, which is a violation of Ariz. Admin Code section R4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The opinion of Complainant’s expert Thompson regarding the best repair method in this case are unpersuasive. Inasmuch as this witness had no opportunity to view the state and status of the job site until a full summer and part of the Northwest Arizona Winter had passed, he has no superior foundation upon which to generate his opinion about repair of the job over the ROC Inspector who viewed the site a little over a month after the cement pour on this job.

The opinion of the ROC investigator agrees with that of the Respondent that grinding and resurfacing of this slab is an appropriate method of repair. Moreover, the testimony of Mr. Cummings who was called by the Complainant that grinding of the slab’s imperfections could accomplish reaching the elevation specifications for the placing of a metal building on the site is similarly persuasive and agrees with both the ROC investigator and the Respondent.

Grinding and resurfacing is one of several appropriate methods for the repair of Respondent’s work in this case.

The preponderance of the evidence shows that Jake's Construction, Inc. violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner in that its concrete pour of Complainant’s slab with a mixture that was curing as it was being poured resulted in variable, wavy elevations in the concrete not appropriate for the Complainant’s contracted use.

Respondent takes the position that its failure to comply with the ROC’s directive was justified by Complainant’s refusal to allow Respondent to provide repairs unless the concrete slab was demolished and re-poured rather than by an appropriate method of grinding and resurfacing. As such, Respondent does have a valid justification for its failure to comply.

The preponderance of the evidence does not show that Jake’s Construction, Inc. violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the ROC’s directive because the Complainant refuses to allow the Respondent access to do the required work.

Considering the nature of the violations at issue, the Administrative Law Judge typically would recommend that Respondent be given an opportunity to correct any workmanship or other deficiencies before imposing discipline against it. In light of the facts and circumstances of this matter however, including that the Complainant directed the Respondent to stop work before it was able to complete or correct its work and that Complainant continues to be unwilling to allow Respondent to complete or correct the work unless Respondent demolishes and re-pours the cement slab, it is not appropriate to issue an Order requiring the Respondent to make the appropriate corrections, nor is it appropriate to suspend or revoke the Respondent’s license.

The Respondent admits and it is hereby found that the sum of $2,000.00 dollars that was above and beyond the contracted bid. This amount was paid to the Respondent for construction of footers which were drawn in the site plans at the time of the Respondent’s bid offer.

RECOMMENDED ORDER

IT IS RECOMMENDED that thirty days after the effective date of the final Order in this matter Jake’s Construction, Inc., ROC license numbers 220535 and 226438 is suspended for one day unless the Registrar of Contractors receives proof that Jake’s Construction, Inc. has credited Complainant Kent L Keyfauver’s unpaid balance owing Jake’s Construction, Inc., in the amount of $2,000.00.

FURTHER IT IS RECOMMENDED that the rest and remainder of the Complainant’s Complaint be dismissed.

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 is forty days after the date of that certification.

Done this day, January 9, 2017.

/s/ Randolph D. Wolfson, Esq.

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors