ALJDEC

98F-1221-ROC · Registrar of Contractors · 1998-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 1998 APPEARANCES: David A. Nielsen, president of Allen-West, Inc.; Eurby J. White, president of Three E Construction, Inc. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. Complainant and Respondent entered into a contract for Respondent to construct an exposed aggregate concrete driveway (the “driveway”) at the Kalan residence located at 12307 North 119th Street, Scottsdale, Arizona . 2. Complainant showed Respondent an aggregate driveway in the Ancola development in Scottsdale, Arizona, and requested that Respondent duplicate that driveway for Mr. Kalan. It is undisputed that the “sample” driveway consisted of 3/8 of an inch aggregate concrete. 3. Complainant completed construction of the Kalan residence in January, 1997. In September, 1997, Mr. Kalan contacted Complainant to complain about deterioration of the driveway. Complainant then contacted Respondent who represented that the driveway would be repaired. 4. The driveway consists of 6-8 sections. It is undisputed that four sections of the driveway are deteriorating. 6. Because Respondent did not repair the driveway, Complainant filed a complaint against Respondent with the Registrar of Contractors. As a result of that complaint, a jobsite inspection was performed by Registrar of Contractors’ Inspector Martin Di Antonio on December 12, 1997. During that jobsite inspection, Respondent represented that the driveway would be repaired. 7. At the above-mentioned jobsite inspection, a representative of the materials supplier for the aggregate mix was present. Although that representative agreed to supply new materials, he stated that, in his opinion, there was nothing wrong with the mix design. 8. Respondent contends that because there was nothing wrong with the mix design of the materials used in construction of the driveway, Respondent is not responsible for any repairs to the driveway. Further, Respondent asserts that it advised Complainant’s superintendents that previously, with another construction company, Eurby White, Respondent’s president, had been involved in a situation where a 3/8 of an inch of aggregate concrete had been used in a semi-circular driveway which subsequently deteriorated. Respondent expressed concern that the 3/8 of an inch aggregate was not sufficient to be used on a driveway where motor vehicles are driven. According to Mr. White, the superintendents for Complainant instructed Respondent to use the 3/8 of an inch aggregate mix. 9. Complainant asserts that at the time when the above-mentioned “sample” driveway was shown to Respondent, Respondent did not mention any problems with construction of a semi-circular aggregate driveway using 3/8 of an inch aggregate mix and agreed to construct a similar driveway at the Kalan residence. 10. Inspector Di Antonio issued a Corrective Work Order on December 18, 1997, requiring Respondent to perform remedial work to the driveway for the areas that were deteriorating. Respondent was to have performed such work within 15 calendar days from the issuance of that order. 11. Respondent did not comply with the Corrective Work Order and has not undertaken to repair the driveway. 12. Both David Nielsen, Complainant’s president, and Inspector Di Antonio credibly testified that they were at the Kalan residence on August 10, 1998, and that not only has the driveway not been repaired, the driveway has further deteriorated since the jobsite inspection of December 12, 1997. 13. There is no evidence in the record that Respondent obtained a written disclaimer of warranty from Complainant or the Kalans regarding the construction of a 3/8 of an inch aggregate concrete driveway and, thus, is responsible for such work. 14. The driveway constructed by Respondent fails to meet minimum workmanship standards. CONCLUSIONS OF LAW The evidence of record established that Respondent violated the provisions of A.R.S. §32-1154(A)(7),(23) and (3), namely A.A.C. R4-9-108. RECOMMENDED ORDER Based on the above, it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-09 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work to correct the deficiencies of the Kalan driveway. It is further recommended that if Respondent complies with the above, on or before the effective date of the Order entered in this matter, the above license suspension shall take place. It is further recommended that in addition to the above-described suspension, if any, that, pursuant to A.R.S. §32-1154(D), Respondent pay a civil penalty of $100.00 to the Registrar of Contractors within thirty days of the effective date of the Order entered in this matter. The failure of Respondent to pay the entire amount of the above-mentioned civil penalty on or before thirty days following the effective date of the Order entered in this matter shall result in the automatic revocation of Respondent’s Class C-09 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)(3), unless payment of any outstanding civil penalty is tendered to the Registrar of Contractors. Done this day, August 20, 1998.

_________________________________ Lewis D. Kowal Administrative Law Judge

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

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

ATTN: Joyce Armijo

By _______________________________

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