ALJDEC decisions subject to certification as final

2018A-2849-ROC · Registrar of Contractors · 2019-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2019 APPEARANCES: Mike and Linda Touzeau, Complainants; Ryan Overcash, Arizona Foundation Solutions; Gerald Perkins, Respondent, Chris Allison, Registrar of Contractors Construction Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT Hardcore Construction LLC, Respondent. [hereinafter, “HC”] is the holder of ROC License ROC 179663 issued by the Arizona Registrar of Contractors [“ROC”].[1] In July of 2017, Complainants Michael and Linda Touzeau, [hereinafter “Touzeau”] entered into a contract with its General Contractor, Creative Green Homes, to construct a new home for Touzeau As between HC and Touzeau, there was no written contract. HC was a subcontractor hired by Creative Green Homes. Creative Green Homes sub-contracted Gerald Perkins, owner of HC to build the foundation and to do cement work on the Touzeau’s garage floor. In August 2017, HC invoiced $39,458.00 to Steve Sims of Creative Green Homes for work performed by Gerald Perkins of Hardcore Construction on the Touzeau home.[2] On June 21, 2018, The Touzeau filed a Complaint against HC for alleged workmanship violations arising from work performed at Touzeau’s residence located at 4611 Stonecrop Lane, Show Low, Arizona. The Registrar assigned the complaint to ROC Investigator Chris Allison. An initial jobsite inspection [“JSI”] was conducted on July 30, 2018. At the initial inspection, Touzeau indicated that “…they had hired an engineering firm to give an analysis of the home. They feel that it is sinking.” At the July 30, 2018, inspection both parties agreed to wait to have and decision made until after the report was back.”[3] Investigator Allison’s findings at the July 30, 2018 JSI is reported in his JSI Notes: Complaint Item 1: Concrete in garage floor cracking Investigator’s Observation: At the time of inspection there were several cracks in the slab. Some of which exceeded 1/16" for compound cracks and 3/32" for cracks. Governing Rule: R4-9-108 ….

Complaint Item 3: Garage floor is crowning causing garage door to close improperly. Investigator’s Observation: At the time of inspection there was a crown in the center of the double garage door. This was leaving a gap at the corner of the door. Governing Rule: R4-9-108.

On November 2, 2018, Mr. Allison advised HC that the Engineer’s Report had been completed and that Touzeau filed an Amended Complaint stating: Cracks in the garage wall have continued to expand and one is now (as of October 3, 2018) running across the wall to the corner. The foundation under the floor in the hallway leading to the master bedroom is causing the floor to slant. (master bedroom door sticks and has uneven gap at the bottom) The foundation at the southeast corner of the master bedroom is sinking. The AC pad was poured so that it is slanting back toward the house. The cracks in the garage floor seem to be widening. Garage floor on the 2 car stall is crowning which is not allowing our garage door to close properly.

Thereafter, a second JSI was set and conducted on November 13, 2018. Mr. Allison’s findings from the second JSI are detailed in his JSI Inspection notes.[4] Mr. Allision’s JSI Notes provided: Jobsite General Notes:

This is the note for the addendum submitted on 11/2/18. The Respondent was not present for this inspection.

Complaint Item 1: Cracks in the garage wall have continued to expand and one it now (as of October 3, 2018) running across the wall to the corner. Investigator’s Observation: At the time of inspection there were several cracks in the drywall. Based off of the data in the Engineer's Analysis these are caused by movement of the foundation. The respondent should determine the cause and correct. Governing Rule: R4-9-108

Complaint Item 2: The foundation under the floor in the hallway leading into the master bedroom is causing the floor to slant (master bedroom door sticks and has uneven gap at the bottom) Investigator’s Observation: At the time of inspection the floor is sloped to one side. This is also observed when the door is in an open position and touching the floor to when it is closed and there is a gap about 1/4". Based off of the data in the Engineer's Analysis these are caused by movement of the foundation. The respondent should determine the cause and correct. Governing Rule: R4-9-108

Complaint Item 3: The foundation at the southeast corner of the master bedroom is sinking. Investigator’s Observation: Based off of the data in the Engineer's Analysis these are caused by movement of the foundation. The respondent should determine the cause and correct. Governing Rule: R4-9-108

Complaint Item 4: The AC pad was poured so that it is slanting back towards the house. Investigator’s Observation: At the time of inspection the slab has a negative slope towards the home. The slab should slop away for drainage 2%. Governing Rule: R4-9-108

8. On November 15, 2018, Mr. Allison issued a Written Directive to HC that provided as follows: You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on December 17, 2018. [emphasis in original]. You are hereby directed to remedy the following violations by the appropriate means:

Initial Inspection. Concrete in garage floor cracking. The garage floor had compound cracks in excess of 1/16” cracks in excess of 3/32”. Respondent should determine the cause and correct in the appropriate manner.

Garage floor is crowning causing garage door to close improperly. The garage floor is crowning in the middle of the 2 car door. This is causing a gap in the side of the door. Respondent should determine the cause and correct in an appropriate manner.

Addendum Inspection Cracks in the garage wall have continued to expand and one is now (as of October 3, 2018) running across the wall to the corner. Several cracks in drywall caused by foundation movement. Respondent should determine and correct the cause of the foundation movement, and correct cracks in dry wall in an appropriate manner.

The foundation under the floor in the hallway leading into the master bedroom is causing the floor to slant (master bedroom door sticks and has uneven gap at the bottom). The floor is sloped due do foundation movement. Respondent should determine and correct the cause of the foundation movement, and correct the levelness of the floor in an appropriate manner.

The foundation at the southeast corner of the master bedroom is sinking. Based off of the Engineer’s analysis this is caused by movement of the foundation. Respondent should determine the cause and correct in an appropriate manner.

The AC pad was poured so that it is slanting back towards the home. The pad has a negative slope towards the home. Pad should slope away from home by 2%. Respondent should correct in an appropriate manner.

Following the issuance of the Written Directive, Mr. Allison, on December 21, 2018, spoke to Mr. Touzeau who advised that there has been no work attempted or completed in response to the Written Directive. On December 26, 201, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3)[5] and A.R.S. § 32- 1154(A)(22)[6] A hearing was held before the Office of Administrative Hearings, an independent agency, on April 16, 2019. Investigator Allison testified consistently with his JSI Notes and his Written Directive.[7] He testified that the items listed in his November 15, 2018 Written Directive constituted work that was below workmanship standards. He testified that in accordance with A.C.C. Rule 4-9-108 Workmanship Standards pertaining to Site Work, excessive settlement or cracking of floors, slabs, walks, drives or stems due to improper compaction of the subsurface and/or improper compaction of trenches and excessive cracking due to expansive soils are conditions that should be known to the contractor prior to construction. Moreover, he noted, regarding cracking of garage slabs, in excess of 3/32” width or 1/8” vertical displacement or compound cracks in excess of 1/16” in width are not acceptable. The Site Work’s portion of the Rule directs that the deficiencies identified are completely unacceptable and that the Rule provides no tolerance for the defects observed and described in the JSI. Complainant’s witness, Ryan Overcash, testified he is the owner of Arizona Foundation Solutions. He stated that his company was retained by Touzeau to evaluate the foundation and the foundation conditions of this property and to perform a manometer and foundation survey on the interior of the property. Mr. Overcash’s company prepared a comprehensive report [hereinafter the “Engineering Report”] regarding the measurement and observations.[8] The Engineering Report contained an Engineer’s Certification which stated “Arizona Foundation Solutions certify that the proper investigation has been conducted under the direction of a current licensed engineer, following a "Level B" investigation as defined by the Foundation Performance Association and/or Texas ASCE. The conclusions and recommendations for the repair of your foundation by us are supported by the professional licensed engineer for that investigation.” The Engineer Report bears the signed Engineer’s Certification Stamp of John H. Ciminski, Civil Engineer. Mr. Overcash explained as part of the analysis of HC’s work on the Touzeau foundation, measurements of the sloping variations in the home were obtained using a manometer. The Engineer Report explains: The manometer survey, also known as a floor survey, is a measurement of the differences of interior floor elevations. The flatness of the interior floor was measured using a highly accurate survey device known as a Manometer. The entire interior floor area was surveyed and the elevations were recorded. These data points were then entered into a computer program that provides a topographical map showing the high and low elevation contours of the floor surface. This topographical map shows where the foundation is out of level and shows where support and stabilization is needed. The floor survey also demonstrates whether any floor slab heave or settlement exists.[9]

The Arizona Foundation Solutions Engineer Report provides its findings and conclusions as follows: After examining the home and performing the manometer survey, Arizona Foundation Solutions believes the Garage could be experiencing foundation settlement at the north west comer as shown by the damage on page 7 (Signs of Stress) and lower readings on page 10 (Topographical Map). This settlement may be occurring in the footing and stem wall and thus manifesting in the exterior wall. The drop off in floor elevations on the topographical map is consistent with a foundation settlement pattern. Settlement can be caused by one or any combination of many factors including sub-grade saturation of moisture due to poor drainage, years of storm runoff, plumbing leaks, improper compaction, the lack of a proper foundation system, and/or (in most cases) natural earth movement.[10] Arizona Foundation Solutions also believes the home could be experiencing minor foundation settlement at the eastern portion of the Master Suite as shown by the lower readings on page 10 (Topographical Map).[11]

Mr. Overcash advised that his engineer said to him that the “soils are unstable, the foundation is moving because of soil movement…the foundation is sinking.” When asked what the cause of the soil instability, he stated that “improper compaction” was the cause. He said “It is crucial to get a soil analysis report before proceeding to any kind of construction.”

HC’s qualifying party, Gerald Perkins, testified that Steve Sims of Creative Green Homes, the principal of Complainant’s General Contractor and the company that sub-contracted HC, has died and is therefore not available for hearing. Mr. Perkins admitted on the record that there was “…obviously movement on the soil, I admit that.” Further, Mr. Perkins stated that the “…movement is not due to concrete work [that he performed], but by sub-grade conditions. I do not dispute that.” On cross- examination, Mr. Perkins was asked whether he was aware of the expansive soil conditions on this property and whether “…it is fair to say that he [Perkins} should have been aware of the soil conditions before digging?” Mr. Perkins response was “No! I was not asked, required or able to determine the soil conditions.” Mr. Perkins was asked whether HC is responsible to correct or ensure correction of settling or heaving if compaction is not according to the licensed soils engineer’s report or if no alterations have been made by owner or owner’s agent. Mr. Perkins replied that he did no soil analysis for this job and did no compaction. It was Mr. Perkin’s belief, he said, that determining soil conditions before commencing work on this project is not his responsibility as a sub- contractor, but instead is the responsibility of the General Contractor alone. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 2, 2019. Such prior License record reflects that Respondent’s License No. 256686 was first issued on March 30, 2003 and other than the Complaint in this case, no record of any other Complaint having been filed is shown. HC’s license has not been previously disciplined arising out of a Compliant. HC’s pristine record is a mitigating factor. 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 violation 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 credible evidence presented at hearing established by a preponderance of the evidence that • The concrete in garage floor is cracking; the garage floor had compound cracks in excess of 1/16” and cracks in excess of 3/32”; • The garage floor is crowning causing garage door to close improperly - the garage floor is crowning in the middle of the 2nd car door causing a gap in the side of the door; • Cracks in the garage wall have continued to expand and one is (as of October 3, 2018) running across the wall to the corner - several cracks in the drywall are caused by foundation movement;

• The foundation under the floor in the hallway leading into the master bedroom is causing the floor to slant (master bedroom door sticks and has uneven gap at the bottom) - the floor is sloped due do foundation movement. • The foundation at the southeast corner of the master bedroom is sinking. Based off of the Engineer’s analysis this is caused by movement of the foundation. • The AC pad was poured so that it is slanting back towards the home. The pad has a negative slope towards the home. Pad should slope away from home by 2%. • No compaction of soil was undertaken before HC began construction. Improperly compacted soil and unstable soil condition is the efficient cause of foundation movement and cracking, crowning and associated defects in HC’s work. HC neglected, refused or otherwise determined it was under no duty to obtain a soil analysis report before commencing construction. Therefore, Complainant has established by a preponderance of the record that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[12] Pursuant A.R.S. § A.R.S. § 32-1154(E), the Registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of A.R.S. § 32-1154(A)(22). The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. A person who is or was named on a license of a contractor when an act or omission occurs that results in a civil penalty may not receive a new license under this chapter until the entire civil penalty is paid. HC undertook no effort to comply with the Directive’s Corrective Work Order prior to the Directive’s stated deadline of 5:00 p.m. on December 17, 2018. By a preponderance of the evidence, Complainant has established that HC violated A.R.S. § 32-1154(A)(22).[13] RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Hardcore Construction LLC’s ROC license number 179663 for two (2) days. FURTHER IT IS RECOMMENDED that a civil penalty in the amount of Five Hundred Dollars ($500.00) be assessed against Hardcore Construction LLC’d ROC license number 179663 in accordance with A.R.S. § A.R.S. § 32-1154(E). FURTHER IT IS 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 shall 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 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 40 days from the date of that certification. Done this day, May 2, 2019.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website. [2] Compliant Exhibits 5 and 6. [3] See, Agency Record, page 25, “Job Inspection Notes.” [4] [5] A.R.S. § 32-1154(A)(3): Violation of any rule adopted by the Registrar – namely A.C.C. Rule R4-9-108: A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards

[6] A.R.S. § 32-1154(A)(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. [7] See, ¶ 6, 7 and 8 supra. [8] See, Agency Record, pages 49 through 68. [9] Ibid, Agency Record, page 53. [10] No evidence of sub-grade saturation of moisture due to poor drainage, years of storm runoff or plumbing leaks was introduced. [11] Id., Agency Record, page 59. [12] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [13] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826