ALJDEC decisions subject to certification as final

2016A-3229-ROC · Registrar of Contractors · 2017-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark Alan Reese,

COMPLAINANT,

v.

Cobalt Enterprises Inc. dba,

Cobalt Construction,

License No: 197725

RESPONDENT.

No. 2016A-3229-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 2, 2017, with the record held open until April 27, 2017

APPEARANCES: Complainant Mark Alan Reese appeared on his own behalf. Matthew Camacho, Owner and Qualifying Party appeared on behalf of Respondent Cobalt Enterprises Inc. doing business as Cobalt Construction.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Cobalt Enterprises Inc. doing business as Cobalt Construction (Respondent) is the holder of License No. 197725 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 24, 2016, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to some concrete work at his home. In the complaint, Complainant indicated that the contract for the work was not written, but was oral, the contract date was October 1, 2014, and the total contract price was $11,000.00. Complainant attached to the complaint a copy of a check made payable to Matt Camacho in the amount of $1,000.00.

In its response to the complaint, Respondent asserted that it had never performed any concrete work at Complainant’s home. Respondent acknowledged that Complainant provided and affidavit from Mike Lee stating he was Respondent’s employee at the time in question, but refuted that assertion and offered to establish Mr. Lee was not an employee via payroll records. Respondent also indicated that the $1,000.00 payment to Mr. Camacho personally was not evidence that Respondent had contracted to perform any work for Complainant.

The Registrar assigned the complaint to Investigator Cliff Corlett. After a jobsite inspection, Investigator Corlett 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on October 28, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Jobsite General Notes:

Work was approximatlly [six] 23 months old when the ROC on site inspection ocured [sic].

There were no plans or specifications as to elevations or drainage slopes. Complainant (C) states that the Respondent (R) drove concrete trucks over existing concrete driveway and caused damage. C submitted no before/after photos to support this claim.

Complaint Item 1: Cracking slab.

Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) allows for concrete slab cracks up to 3/32-inches wide or up to 1/8-inch vertical displacement. Cracks in excess of these standards require the affected area to be replaced.

This Investigator noted only one area that exceeded the maximum allowable crack width, and that was near the pool equipment at the top of the driveway.

Respondent should remove and replace the affected area.

Governing Rule: A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 2: Unfinished edges

Investigator’s Observation: Several poor workmanship issues occur where the Respondent has poured new the concrete slab up to existing pool and patio slabs. Rough, unfinished edges were noted and there were unsightly elevation differences that slope/flow water toward the pool deck and trap water on the pool deck.

Respondent should correct by appropriate methods.

Governing Rule: A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 3: No metal in joining existing slab to new slab.

Investigator’s Observation: No plans or specifications were available for review. Project does not require a permit. Metal reinforcement not required. No contractor action required.

Governing Rule: N/A. No violation could be substantiated.

Complaint Item 4: No written contract.

Investigator’s Observation: A.R. S. § 32-1158. Minimum Elements of a Contract.

Since 12/31/2007 Arizona contracting laws require that any construction project in excess of $1,000.00 have a written contract signed by both parties and fully describing the work to be performed. There are several other requirements that can be reviewed below.

Respondent is in violation of A.R.S. § 32-1158.

Respondent should provide the ROC a copy of his business contract conforming to all the requirements of A.R.S. § 32-1158.

Governing Rule: A.R.S. § 32-1158. Minimum Elements of a Contract.

Complaint Item 5: Respondent wanted cash.

Investigator’s Observation: The Registrar warns that a contractor wanting cash could be a “Red Flag” indicating that the contractor may not be paying the appropriate taxes and insurances.

The consumer should be aware.

Governing Rule: A.R.S. § 32-1158.

Complaint Item 6: Drove cement trucks over existing slabs and caused damage. (Cracks)

Investigator’s Observation: Existing driveway concrete is several years old and there is no way for this Investigator to know what cracks may or may not have been present prior to the additional driveway pour.

No contractor action required.

Governing Rule: N/A. No violation could be substantiated.

Complaint Item 7: Used lowest grade concrete.

Investigator’s Observation: No documentation to determine what strength concrete was used or required. Nothing this Investigator saw leads me to believe there is anything wrong with the concrete strength. The concrete cracks observed were typical stress cracks that may have been avoided with additional tooled control joints.

No contractor action required.

Governing Rule: N/A. No violation could be substantiated

Complaint Item 8: Concrete sloped toward pool area.

Investigator’s Observation: Several Poor workmanship issues occur where the Respondent has poured new concrete slab up to existing pool and patio slabs. Rough, unfinished edges were noted and there were unsightly elevation differences that slope/flow the water toward the pool deck and trap water on the pool deck.

Respondent should correct by appropriate methods.

Governing Rule: A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 9: Concrete is 2-inches higher than other slab.

Investigator’s Observation: Several Poor workmanship issues occur where the Respondent has poured new concrete slab up to existing pool and patio slabs. Rough, unfinished edges were noted and there were unsightly elevation differences that slope/flow the water toward the pool deck and trap water on the pool deck.

Respondent should correct by appropriate methods.

Governing Rule: A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 10: Left steel stake in ground next to driveway.

Investigator’s Observation: Respondent should correct (remove) by appropriate methods.

Governing Rule: A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

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 perform any corrective work because it maintained that it did not perform the work at issue. After the deadline in the directive expired, Investigator Corlett was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Corlett was not called to testify at the hearing.

Complainant testified that Mr. Camacho came to his home, they negotiated the contract, and Complainant gave him $5,000.00 cash. After the crew came out to start the work, Complainant then paid another $5,000.00 cash and $1,000.00 by check. Complainant stated that he contacted Mr. Camacho about the issues, but Mr. Camacho never came back out to check on it. Complainant indicated he had known Mr. Camacho for about 15 years.

Complainant also presented the testimony of Diane Reese, Complainant’s wife. Ms. Reese testified that she observed Complainant pay Mr. Camacho the cash for the work.

Mr. Camacho testified that gave Complainant a written estimate for the work that was done, but that he did not hear back from Complainant that he wanted to move forward with the work. Mr. Camacho stated that he did not receive $10,000.00 in cash from Complainant for a project. Mr. Camacho indicated that at some point he went out to Complainant’s property as a friend to look at the project to see if work could be done to fix it. Mr. Camacho testified that Mr. Lee was not an employee of Respondent and that there was no order for concrete on his account associated with Complainant’s address. Mr. Camacho acknowledged he did not attempt to contact Complainant after the written directive because he did not perform the work that needed to be corrected.

Complainant asserted that he could obtain records from the concrete company showing concrete was delivered to his address and charged to Respondent at the time in question. The record was held open for Complainant to obtain a subpoena and submit the concrete information to the Office of Administrative Hearings.

Complainant submitted information from S & S Concrete and Materials, LLC showing deliveries of concrete sold to Respondent and delivered to Complainant’s address on May 28, 2014, and May 29, 2014. Complainant did not provide any information showing deliveries in October of 2014.

Administrative notice is taken of Respondent’s prior License record on May 5, 2017. Such prior License record reflects that Respondent’s License No. 197725 was first issued on July 13, 2004, and is current. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations 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).

The evidence failed to establish that Respondent contracted to perform or performed the work at issue in this matter. Complainant’s evidence of a contract consisted of a check made out to Mr. Camacho personally and the self-serving statement of him and his wife. Even given the opportunity to provide supporting evidence from the concrete supplier, Complainant was unable to provide documentation during the relevant time period.

Because Complainant failed to establish Respondent performed the work at issue, Complainant failed to establish that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3), or that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint in Case Number 2016-3229.

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, May 5, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors