ALJDEC

98F-0818-ROC · Registrar of Contractors · 1998-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 2, 1998. APPEARANCES: Complainant appeared through its president, Brad Miller. Respondent appeared through its general manager, Jim McCann. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Complainant was the general contractor on the 48th Street and Roosevelt retention ditch project located in Phoenix, Arizona. 2. By letter dated February 5, 1997, Respondent submitted a proposal to Complainant to furnish materials, labor and equipment necessary to place shotcrete on grading performed by Complainant on the project. Respondent’s bid was for the application of 4,800 square feet of shotcrete at $1.60 per square foot. The proposal included labor, material and equipment for placement of 3,000 psi shotcrete at 4” thickness with nozzle finish, wire mesh, tool joints, cure and 10% overrun allowance. The following items were specifically excluded from the proposal: engineering, test, permits, bonds, taxes, grading, watering of grade, earth work, forming, traffic control, temperature control, turn downs and water control. 3. Complainant accepted Respondent’s proposal as submitted. 4. Complainant was the responsible party for properly preparing the grading and turn downs pursuant to approved plans and specifications. 5. Complainant failed to have its grading work inspected by the City of Phoenix as required by code prior to it directing Respondent to proceed with the shotcrete subcontract work. 6. When Respondent’s employees arrived at the jobsite to commence shotcrete operations, they observed a rough grade and turn downs which were not in compliance with the approved plans and specifications. They expressed their concerns about the grading and turn downs to Complainant’s onsite representative, who directed them to shoot the existing grading with shotcrete. 7. Notwithstanding having concerns about the rough grade and non- compliant turn downs installed by Complainant, Respondent’s employees proceeded to apply shotcrete to those areas. 8. Respondent’s application of shotcrete on this project was subsequently rejected by both the project engineer and the assigned city inspector, who eventually did inspect the project, because the shotcrete was less than the required 4” thickness in numerous locations. 9. Respondent then proposed a remedial repair involving the application of a cap over the existing shotcrete surface to remedy the thickness deficiency. The project engineer required that either a 3” cap be applied or that the entire shotcrete application be removed and replaced. The city inspector approved the re- engineered plans requiring the 3” cap. 10. On or about September 23, 1997, Complainant, without notifying Respondent, removed approximately 2,400 square feet of shotcrete applied by Respondent located in the eastern portion of the project. Complainant tore out that shotcrete so that it could perform remedial work to its underlying deficient grading work. 11. Respondent objects to the scope of remedial repairs required by Complainant, which now includes culverts that were not within Respondent’s original scope of work. 12. Complainant is found not to have provided proper grading of the surface as required by the approved plans and specifications. 13. Complainant’s failure to provide proper grading would have been discovered prior to Respondent’s application of shotcrete if the City of Phoenix had performed the required grade inspection. 14. Respondent is deemed to have accepted Complainant’s deficient grading when it elected to go ahead and apply the shotcrete with knowledge that the grading and turn downs did not comply with approved plans and specifications. However, that acceptance of the deficient surface does not relieve Complainant of its responsibility to comply with the plans and specifications for the grading and turn downs. 15. Complainant’s failure to provide proper grading is determined to have had a material and substantial impact on the failure of Respondent’s shotcrete installation to meet the 4” thickness specification. Portions of the grading performed by Complainant were elevated above the height required by the approved plans and specifications resulting in the shotcrete thickness being less than the 4” requirement. 16. Respondent committed a wrongful act by proceeding with the shotcrete application knowing that the grade and turn downs, which were Complainant’s responsibility, did not meet approved plans and specifications. However, Complainant is not found to have been substantially injured by Respondent’s wrongful act due to Complainant’s failure to properly prepare grading and turn downs, to timely obtain the code-required city inspection of that work and to remedy its workmanship deficiencies when notified by Respondent’s workers prior to the application of the shotcrete. 17. The totality of the evidence of record supports a finding that both Complainant and Respondent share responsibility for the failure of the shotcrete installation to meet minimum workmanship standards. 18. Ordinarily it would be appropriate for the Registrar of Contractors to require that Respondent remedy its deficient workmanship as a reasonable condition to be placed upon its Class L-05 license. Under the facts of this case, and given that Complainant bears a substantial responsibility for the deficient grading and turndowns which contributed to Respondent’s deficient shotcrete application, it is determined that such a requirement should not be considered by the Registrar in these disciplinary proceedings. However, the Registrar should considered assessing other disciplinary penalties against Respondent for its deficient workmanship on this project.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. ( 32-1154 (A) (3); namely Rule R4- 9-108. 2. Complainant failed to sustain the required burden of proving that it has been substantially injured by Respondent’s wrongful act by a preponderance of relevant, substantial and probative evidence, and, consequently, the record does not support any finding that Respondent has violated the provisions of A.R.S. ( 32-1154 (A) (7).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class L-05 license be placed on disciplinary probation for a period of 60 days.

Done this day, February 20, 1998.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826