ALJDEC decisions subject to certification as final
2017A-6213-CHC-ROC · Registrar of Contractors · 2018-07-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Victoria Gratopp,
COMPLAINANT,
v.
Perfection Concrete Works LLC ,
License No: 255776
RESPONDENT.
No. 2017A-6213-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 21, 2018, 8:30 A.M.
APPEARANCES: Complainant Victoria Gratopp appeared on her own behalf; Tom Sautter, Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Perfection Concrete Works, LLC (Respondent), is the holder of License Number 255776 issued by the Registrar of Contractors (Registrar).
2. On or about December 15, 2017, Victoria Gratopp (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work performed by Respondent in connection with installation of a concrete slab for a casita at Complainant’s residence in Phoenix, Arizona.
3. Upon completion of an inspection performed by the Registrar on January 11, 2018, the Registrar issued a Directive, dated March 9, 2018, requiring Respondent to correct the alleged deficiency in Respondent’s work by March 26, 2018, as follows:
Floors not level. See attached engineering report and also floors should be level within 1⁄4” in any 12’ run per workmanship standards of the ROC.
4. After being informed that no corrective work had been undertaken, the Registrar then issued a Citation to Respondent, dated April 5, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for June 21, 2018, at 8:30 A.M. At the hearing, Complainant Victoria Gratopp testified on her own behalf. Respondent presented the testimony of Tom Sautter, Owner, and Mary Ann Sautter. Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 8.
6. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he determined the floor was unlevel but waited for a report from Complainant to confirm, which he stated he received on March 9, 2018. (Complainant’s Exhibit 1). The report from Arizona Foundation Solutions confirmed a sloping floor with a variance of 7/8 inches within 12 linear feet.
7. Complainant testified that soon after the job was completed, she discovered the concrete floor installed by Respondent sloped to one corner of the casita. She further testified that when she brought it to Respondent’s attention, Respondent stated that it was only off by 1/4 inch which he said was within guidelines. She stated that she did not pursue the matter but then noticed a large crack this year and surmised that it resulted from the sloping floor. She further stated she then hired an engineering company to determine deviation. (Complainant’s Exhibit 1). She further testified that Respondent never offered to level the floor in 2015, because had such an offer been made, there would have been no reason for her not to accept it.
8. Ms. Gratopp further stated that after the Directive was issued, Respondent agreed to perform corrective work but that Mr. Sautter went on vacation and never contacted her when he returned. She stated she then spoke with the Investigator and told him that she had thought Respondent was going to move forward with repairs, but that the Investigator stated he was submitting the matter to the Registrar Legal Department. She stated that she had not rejected Respondent’s offer to repair once the Directive was issued, but that Respondent’s proposal to level one corner of the floor and leave the floor in that condition would be unacceptable to her.
9. Tom Sautter testified on behalf of Respondent that Respondent installed the concrete foundation in accordance with the blueprints he received from Complainant, that the soil was compacted, and that the job passed inspections. He stated that he was contacted by Complainant in 2015 after the job was completed about the southeast corner of the floor being unlevel and that he offered to float or level the floor at that time. He testified that in response, Complainant said the floor as is would be acceptable and that it would not be noticeable and that he never heard anything else from her for two years. He testified further that he had agreed that one corner of the floor was low. He further stated he did not believe there had been foundation settling, and that the crack that Complainant noticed this year was a shrinkage crack that was within industry standards.
10. Mr. Sautter further testified that on March 15, 2018, he offered again to level the low floor corner but that Complainant said that such a repair was not acceptable because the floor was stained and would not match if leveled and that she would now be required to install tile. He stated he told the Investigator that he offered to repair the floor to industry standards but that Complainant rejected the offer.
11. Mary Ann Sautter, wife of Mr. Sautter, testified on behalf of Respondent that Mr. Sautter told the Investigator that he had offered to repair the floor after the Directive was issued but that Complainant rejected the offer.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, a Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive....
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The Workmanship Standards for Licensed Contractors issued by the Registrar stipulate that with respect to floors that are not level, up to 1/4 inch within 12 linear feet is an acceptable tolerance. The evidence presented was that there was a 7/8 inch deviation within 12 linear feet. Respondent offered no evidence that the floor it installed was not level upon completion of the job. In fact, Respondent agreed that the floor was unlevel and stated that it offered to remedy the condition in 2015 by levelling the floor but that Complainant refused the offer. Complainant disputed that such an offer was made in 2015, but even if it was, such an offer would have no bearing on a determination whether the work was initially performed in a professional and workmanlike manner. Respondent also offered no evidence that this unlevel condition was caused by anything other than Respondent’s failure to perform the work in a professional and workmanlike manner.
7. Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to take appropriate corrective action without valid justification. There is no dispute that corrective work was not performed. There is also no dispute that Respondent offered to perform corrective work of some type. Respondent contended that a valid justification existed for its failure to perform corrective action because Complainant rejected Respondent’s offer to perform its proposed corrective work. Complainant maintained that she never rejected any offer of Respondent, and that she had expected Tom Sautter to contact her after he returned from vacation about proceeding with corrective work. There was no evidence presented that Mr. Sautter made such contact after his return, as he was apparently under the impression that Complainant had rejected his offer to perform corrective action. However, there was no written or other persuasive evidence presented to support this mistaken impression. Consequently, Respondent has failed to establish a valid justification for not proceeding with corrective action.
8. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Perfection Concrete Works, LLC’s, License Number 255776 is suspended for two days.
In the event of certification of this 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 the certification.
Done this day, July 11, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors