ALJDEC

98F-2180-ROC-res · Registrar of Contractors · 1999-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 22, 1999 APPEARANCES: Complainant appeared on his own behalf. Capital Pacific Homes of Arizona, Inc. (“Capital”) was represented by its attorney, Roger Decker. Brennan Concrete, Inc. (“Brennan”) appeared through its president, Jim Brennan. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. The above captioned matters were consolidated for the purpose of hearing since both involved the same basic issues of fact and entailed the use of similar witnesses. Capital was the general contractor on new home construction purchased by Complainant and Brennan was the concrete subcontractor retained by Capital to place the driveway on said property. Complainant alleges certain deficiencies in the concrete driveway and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note: a. The driveway in question is a very large exposed aggregate driveway. b. Complainant contends that the work performed on said driveway is indicative of substandard workmanship based on the existence of a crack that runs the length of the driveway, a degree of color variation between the two sides of the large driveway, and areas of the exposed aggregate that are flat where the aggregate is not adequately exposed. c. Both Respondents contend that although the driveway is not perfect, it falls within minimum standards for acceptable exposed aggregate concrete work. d. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondents letters directing them to accomplish specified remedial work within a stated period of time. Brennan performed certain corrective work on the crack and acid washed the driveway twice but Complainant found said corrective action to be unacceptable and therefore, the assigned inspector was again called out to look at the “repaired” driveway. e. At the second jobsite inspection the assigned Registrar inspector now determined that in his opinion the driveway would need to be totally replaced. Although this new opinion was not placed into a written document, the inspector verbally advised Respondents that the driveway would require replacement. Brennan disagreed with the inspector’s decision and requested that the matters be set for an administrative hearing. f. The inspector in question appeared at the hearing and testified referable to the above-described facts. Although the inspector was shown to have extensive experience in construction and numerous years of inspection experience with the Registrar of Contractors, it was adequately shown that his pre-Registrar construction experience was not specifically in the area of concrete work. g. Jesse Wyatt (“Wyatt”) appeared at the hearing and testified on behalf of Respondents. Wyatt is a civil and structural engineer who was shown to have extensive experience in the design and inspection of concrete work. As part of his extensive experience in designing and evaluating concrete, Wyatt spent 18 years with the Portland Cement Association. h. The salient portion of Wyatt’s testimony included the following: i. It is not possible to guarantee that a given concrete slab will not evidence some cracking. The crack in question was not highly visible when dry, it is a mere shrinkage crack with no vertical displacement or compound cracking, and not indicative of any structural defect in the concrete. Moreover, he found the crack to be approximately 1/32” in diameter and that any attempt to repair such a crack would probably create a worse aesthetic problem. Thus, Wyatt did not find any reason to perform remedial work on the crack. ii. The driveway in question is so large that two different truck loads of concrete were required. It is not unusual when two different batches of concrete are utilized to get some degree of variation in color of the final finished concrete product. Any normal variation, such as that presented herein, will reduce over time. Thus, Wyatt did not find the color variation between the two sides of the driveway to be outside of minimum industry standards for acceptable concrete work. iii. It is normal in exposed aggregate concrete work to have areas of the finish which will have less exposure of the aggregate than others. There are a number of factors that are involved in causing this normal lack of uniformity of the aggregate exposure including the variation in size of the aggregate and the typical procedures and tools that are available to expose the aggregate after the concrete mix is poured into place. Wyatt found the variation in exposure of the aggregate on Complainant’s driveway to be about average for an exposed aggregate finish on a concrete driveway.

3. The Registrar of Contractors does not apply perfection standards when determining whether a given aspect of construction work is indicative of good and proper workmanship but merely applies minimum industry standards. Although sharply conflicting testimony was presented regarding the acceptability of the driveway in question, it is determined that the weight of the evidence of record was sufficient to support a finding that the driveway is within minimum industry standards for exposed concrete work. Thus, Complainant failed to sustain the requisite burden of proof on this issue.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, June 29, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of June, 1999, to:

Registrar of Contractors Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826