ALJDEC decisions subject to certification as final

2017A-1280-CHC-ROC · Registrar of Contractors · 2018-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donna Jean Kitchens-Marquez,

COMPLAINANT,

Onsite Concrete Specialists LLC,

License Nos. C-9.244658-C

R-9.244659-R,

RESPONDENT.

No. 2017A-1280-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 19, 2017, at 8:30 a.m.

APPEARANCES: Donna Jean Kitchens-Marquez (“Complainant”) appeared on her own behalf; Onsite Concrete Specialists LLC (“Respondent”) appeared through Abel Delgado Cordova, Jr., its qualifying party/member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on or about April 23, 2008, the Registrar issued License Nos. C-9.244658-C for commercial concrete and R-9.244659-R for residential concrete to Respondent.

On or about March 8, 2017, Complainant filed a complaint with the Registrar against Respondent alleging that in May 2015, Respondent orally contracted to pour a patio slab on the back of Complainant’s house at 14576 W. Hope Dr., Surprise, Arizona 85379, and that Complainant had paid Respondent the entire $3,800.00 contract amount. Complainant alleged that the concrete slabs that Respondent poured had excess cracks, excess vertical displacement, and that water did not drain from the slabs. Complainant stated that Respondent’s qualifying party/member, Abel Cordova, had informed her that he no longer lived in Arizona and that a family member had taken over Respondent’s business, but that no one had responded to her requests to repair the concrete work.

The Registrar assigned the complaint to its Investigator, Russell Reed, for investigation. Investigator Reed performed a jobsite inspection on April 3, 2017, which Respondent did not attend, and on April 3, 2017, issued a directive to Respondent to repair all three items on Complainant’s complaint on or before 5:00 p.m. on April 18, 2017.

On or about April 17, 2017, Investigator Reed interviewed Mr. Cordova. Mr. Cordova denied performing the job at Complainant’s house. After Complainant and her husband were not able to pick Mr. Cordova from a photographic lineup, Investigator Reed closed the workmanship complaint and referred the matter for a fraud investigation by Investigator Laurie Swanson of the Registrar’s Unlicensed Contractor unit.

On or about August 31, 2017, the Registrar subpoenaed Respondent’s bank records, which showed that Respondent had been paid for the job. Investigator Reed reopened Complainant’s workmanship complaint against Respondent.

On or about September 20, 2017, Investigator Reed performed a second jobsite inspection. Respondent did not attend the second jobsite inspection. On September 20, 2017, Investigator Reed issued a second directive to Respondent to repair by appropriate means the compound cracks in the concrete slab that exceeded 3/32”, the new concrete that was lifting, with a lip that exceeded 1/8”, and the excessive pooling of water on one section of the concrete.

Respondent attempted to perform corrections to comply with the September 20, 2017 directive. On October 18, 2017, Investigator Reed performed a compliance inspection, which Respondent did not attend. Investigator Reed’s report of his compliance inspection opined that Respondent had not succeeded in repairing by appropriate means any of the three items of complaint, in relevant part as follows:

Compliance Findings: Three items were listed on the Directive from the Registrar:

1) Compound crack in concrete slab is in excess of 3/32".

This crack is no longer visible however, the repair method used to cover the crack is poorly executed and the extension of the patio in its entirety is very poorly completed. It does not appear that the workmanship was completed in a professional, workman like manner.

2) New concrete is lifting and has a lip in excess of 1/8".

The lippage was ground down and a coating was applied to the surface of the concrete, however, the repair method used to cover the area is poorly executed and the extension of the patio in its entirety is very poorly completed. It does not appear that the workmanship was completed in a professional, workman like manner.

3) Excessive pooling / ponding of water on one section of concrete.

Photos will show there are now two areas where water is ponding and not draining properly. The method used to correct this was poorly executed.

The repairs made to comply with the directive do not meet workmanship standards appear poorly executed. The coating was only applied to certain areas of the patio leaving the overall finish of the patio very inconsistent.

After the compliance inspection, Investigator Reed referred the complaint to the Registrar’s Legal Department. On October 19, 2017, the Registrar issued a Citation against Respondent’s contractor’s licenses, charging cause to revoke or suspend the licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/member Mr. Cordova filed a timely written answer to the Citation, denying any statutory violations and stating that Respondent had performed appropriate corrective action to comply with the September 20, 2017 directive. Mr. Cordova also affirmatively alleged that the settlement of and ponding on the large patio slab was due to preexisting columns that others had poured

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on December 19, 2017. Complainant testified and submitted one exhibit. Mr. Cordova testified on Respondent’s behalf. Because Investigator Reed had resigned from his employment with the Registrar, Mike Crow, the Registrar’s Assistant Chief of Construction Investigations (“Assistant Chief Investigator Crow”) testified about the prehearing jobsite inspection that he had performed and whether in his opinion Respondent had complied with the Registrar’s workmanship standards and procedures.

Assistant Chief Investigator Crow testified to establish the facts set forth above. On December 5, 2017, Assistant Chief Investigator Crow performed a prehearing jobsite inspection. Assistant Chief Investigator Crow testified that the condition to the jobsite did not appear to have changed since Investigator Reed’s October 18, 2017 compliance jobsite inspection. Assistant Chief Investigator Crow prepared a report of his prehearing jobsite inspection, which he submitted to OAH and to the parties on December 15, 2017, that provided in relevant part as follows:

Pre-hearing JSI findings -- INCOMPLETE, same as time of CJSI.

Three items were listed on the Directive from the Registrar:

1) Compound crack in concrete slab is in excess of 3/32".

2) New concrete is lifting and has a lip in excess of 1/8".

3) Excessive pooling / ponding of water on one section of concrete.

Photos will show there are now two areas where water is ponding and not draining properly. The method used to correct this was poorly executed.

Assistant Chief Investigator Crow also provided photographs that he had taken at the December 5, 2017 prehearing jobsite inspection to OAH and to the parties.

Assistant Chief Investigator Crow testified that Respondent had ground down the concrete to repair the excess lippage on the west side of the patio and had applied a coating to cover the ground area, but that the application of the coating resulted in excessive inconsistences in the color and texture of the concrete. Assistant Chief Investigator Crow testified that Respondent’s repair of the excess lippage did not comply with the Registrar’s workmanship standards.

Assistant Chief Investigator Crow testified that Respondent had repaired the crack, but that in the area where the crack had been, there was now a hump in the concrete that would cause water to drain down both sides. Assistant Chief Investigator Crow testified that Respondent’s repair of the crack did not comply with the Registrar’s workmanship standards.

Assistant Chief Investigator Crow testified that the area of the patio where the built-in barbeque was located was higher than the rest of the patio and that water still pooled in two areas. Assistant Chief Investigator Crow testified that Complainant had hosed the patio off before his prehearing jobsite inspection. Investigator Crow testified that the Registrar’s workmanship standards require water to drain or evaporate within 48 hours but that he did not know for certain how long it took for the water on Complainant’s patio to drain or evaporate. Assistant Chief Investigator Crow testified that Respondent’s repair of the areas of the patio where water pooled did not comply with the Registrar’s workmanship standards.

Mr. Cordova testified that he disagreed with Investigator Reed’s and Assistant Chief Investigator Crow’s opinions and that in his opinion, Respondent had complied with the Registrar’s workmanship standards in its repairs to Complainant’s patio slab.

Assistant Chief Investigator Crow testified that although the elevation of the columns affected the elevation that Respondent had to pour the patio slab, the columns did not cause the three workmanship deficiencies in the slab.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website. On this date, the website showed that Respondent’s License No. R-9.244659 was current and in good standing. Complainant’s complaint seems to be the only one pending against the license. On or about November 30, 2017, License No. C-9.244658-C was voluntarily cancelled while it was current and in good standing.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s licenses by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Complainant established that Respondent’s workmanship did not comply with the Registrar’s or industry standards in the three respects identified on Investigator Reed’s April 3, 2017 directive, September 20, 2017 directive, and October 18, 2017 compliance inspection notes, and Assistant Chief Investigator Crow’s notes of his December 5, 2017 prehearing jobsite inspection. Complainant has therefore established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked. Respondent acknowledged that it was allowed to perform repairs to attempt to comply with the September 20, 2017 directive. Investigator Reed’s notes of his October 18, 2017 compliance inspection and Assistant Chief Investigator Crow’s testimony and photographs and notes of his December 5, 2017 prehearing jobsite inspection and establish that Respondent’s attempted repairs did not comply with the Registrar’s workmanship standards. Therefore, Complainant established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. R-9.244659-R of Respondent Onsite Concrete Specialists LLC shall be suspended for a period of seven (7) calendar days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, January 3, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors