ALJDEC decisions subject to certification as final

2021A-01416-CHC-ROC · Registrar of Contractors · 2021-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Edwardo Juarez,

COMPLAINANT

Roger Steven Reddell

DBA: Steve Reddell Construction,

License No. ROC 083863,

RESPONDENT

No. 2021A-01416-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 30, 2021

APPEARANCES: Complainant Edwardo Juarez appeared on his own behalf. Respondent Roger Steven Reddell appeared on his own behalf. David Thomas, Registrar of Contractors Investigator appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Roger Steven Reddell (Respondent) is the holder of License No. 083863 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 30, 2020, Edwardo Juarez (Complainant) entered into a contract with Respondent for to pour concrete in his new home build in Prescott Valley, Arizona. The contract amount was for $40,381.00.

On or about April 2, 2021, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator David Thomas. The jobsite inspection was performed on May 5, 2021.

Investigator Thomas then issued a written directive on or about May 24, 2021 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 06/25/2021.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Entire garage floor is spalling & flaking throughout and will continue as weather warms up.

Investigator’s Observation: This complaint item is verified. spalling, pitting throughout garage slab to the extent the the aggregate is exposed causing pop outs in multiple areas of garage slab. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Numerous low spots throughout entire house slab, marked by spray paint for refernece.

Investigator’s Observation: This complaint item is verified. Multiple low areas throughout house slab. Several over 1/4 inch in less than 10 feet. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - House slab is pitted throughout.

Investigator’s Observation: This complaint item is verified. Pitting observed throughout house and garage slab. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Crack on stem wall below power box on corner of

garage.

Investigator’s Observation: This complaint item is verified. Right side corner of house looking at the front of the house there is a 1/8 inch crack in

stem wall. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On July 9, 2021, Investigator Thomas conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Thomas noted that Compliance Items 1 and 4 had been corrected while Compliance Items 2 and 3 were not.

On July 23, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-109 and A.R.S. § 32-1154(A)(22).

On or about August 5, 2021, Respondent e-mailed an Answer to the Registrar, denying responsibility for any issues resulting from the interior slab of concrete, as any damage to the concrete caused by the storm five days later was due to Complainant’s negligence.

On or about August 19, 2021, a Notice of Hearing was issued setting a hearing on September 30, 2021, at the Office of Administrative Hearings, an independent state agency.

Investigator Thomas testified as to the Registrar’s involvement and the above timeline.

Investigator Thomas testified that Respondent complied with the Directive relating to the garage and stem wall damage.

Investigator Thomas testified and referenced his photographs from the Compliance Jobsite Inspection, as to the numerous low spots throughout the entire house slab, as well as pitting and cracking.

In addition, Investigator Thomas noted that there were insulating blankets at the jobsite, and testified that they were not used to protect the interior concrete slab from the storm. Investigator Thomas testified however, that he was unfamiliar at what temperature the blankets should be used.

Finally, Investigator Thomas testified that in the Registrar’s view, this was a workmanship violation and there was a two-year statute of limitations for which Respondent would remain liable for any workmanship issues.

Complainant testified on his own behalf. He testified that Compliance Items 1 and 4 were competed, but the issues with the interior slab were not resolved by Respondent.

Complainant testified that this was the first time building a house and relied on what Respondent said, or did not say, about the concrete and the maintenance thereof.

Complainant testified that while he was aware Respondent needed to find a different worker to help with repairing the interior slab, the work did not commence until the day after the Directive completion date.

Further, Complainant testified that after a day or so of working on the repairs, the flooring contractor stopped working as he needed to find further help as well, but that after further delays and no work being completed, Complainant hired a new company to make the repairs.

Complainant testified that on January 19, 2021, the floor slab was poured, and then on January 24, 2021, there was a snow storm which dumped over 18 inches of snow. Complainant testified that Respondent left him with no instructions as to how to handle the concrete and was unaware that the snow would have damaged the slab.

Complainant testified that he believed that he allowed enough time for Respondent to complete the corrective work, and was seeking, $18,547.00 in damages which included the amount it cost to make the repairs, the construction loan interest and rental expenses for the two month delay, as well as damage to his chandelier caused by Respondent’s work. Complainant was not seeking to have Respondent’s license suspended.

Steve and Lacey Reddell testified on behalf of Respondent and offered 24 exhibits into evidence.

The Reddell’s testified that they believed that once they finished the job and were paid, Complainant would be responsible for the interior slab, as it was Complainant’s responsibility to care for the concrete before during and after the storm. They testified that they would expect to be responsible for problems occurring 24 to 48 hours after concrete pouring.

Respondent further testified that given the location (Prescott Valley) he brings the insulating blankets to every job. He testified though that he only uses them when the temperature reaches below 32 degrees, because the blankets could stain or mark the concrete. Respondent testified that he would typically keep a lookout for the temperature and weather and had been known to go back to the jobsite in the middle of the night to cover the concrete. However, he did not believe he was responsible to do the same 5 days after pouring the interior slab.

In addition, Respondent testified that he used his due diligence in ensuring that the concrete was mixed properly to handle the weather. Further, Ms. Reddell testified that they followed the ACI Manual for Concrete Practices to protect against freezing.

Mr. Reddell testified that he admitted there were delays with his co-worker in making the repairs to the interior slab, but that they were working on finding a solution and because of the construction market, jobs were taking longer than expected.

Finally, Respondent argued that because Complainant was listed as the “owner/builder” on the permits, it was Complainant’s responsibility to know the proper information to care for the concrete.

Administrative notice is taken of Respondent’s prior License record on October 14, 2021. Such prior License record reflects that Respondent’s License No. 083863 was first issued on August 22, 1989, and reflects that there was one open complaint, namely the present complaint.

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 Vazzano 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).

At the outset, The Tribunal notes that Mr. Thomas’ Pencil Citation recommends a violation of A.R.S. § 32-1154(A)(3) - R4-9-109. Further, the Citation on July 23, 2021 also lists the same violation, and so does the Notice of Hearing. A.A.C. R4-9-109 refers to the name of Licensee or Applicant. It is not a workmanship section. While the Tribunal is aware that Investigator Thomas cited the correct code section (R4-9-108) in his Written Directive and Compliance Inspection Jobsite Notes, due process requires that Respondent be made aware of which section he may have violation.

However, both parties testified as if this was a workmanship issue, and thus the Tribunal will analyze the case under the workmanship standard.

After careful review of the testimony and evidence presented, Complainant has not met its burden to prove there was a workmanship violation. Respondent credibly testified that it followed the ACI standards for concrete in cold weather and used a different mix given the cold weather. Respondent certainly was not aware that Complainant would not shovel the snow after the snow storm. Further, A.R.S. § 32-1155(D)(2) states in pertinent part, “[t]he registrar may not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if ...The contractor's work has been subject to neglect, modification or abnormal use.” The Tribunal finds that not shoveling that much snow is neglect and as such, finds no workmanship violation.

Both parties agreed that items 1 and 4 were timely corrected. As mentioned above, the Tribunal finds that because there was no workmanship violation for the interior concrete slab (Items 2 and 3), there can be no violation of A.R.S. § 32-1154(A)(22) for failure to take corrective action to comply with the written directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss complaint 2021-01416 against Respondent.

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 30 days from the date of that certification.

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-137160-45720000Done this day, October 14, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000