ALJDEC

98F-2324-ROC · Registrar of Contractors · 1998-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 1998 APPEARANCES: Complainant appeared through its warranty manager, Gayle Gotshell and Respondent appeared through its president, Abraham Rivera. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Pursuant to contract, Respondent was retained by Complainant for the purpose of placing concrete and kool deck as part of Complainant’s new pool construction project. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 2. Uncontroverted evidence of record demonstrated that within a very short period of time subsequent to Respondent’s completion of the deck installation, the owner of the pool observed numerous chips in the decking material and reported said condition to Complainant. Complainant inspected the complaint from the owner and confirmed the existence of the chipping of the deck installed by Respondent. 3. Complainant was unsuccessful in its attempts to have Respondent correct the above-described deficiency in the deck material and therefore, ultimately filed the instant complaint with the Registrar of Contractors. 4. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work on the deck within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same. 5. Although Respondent does not dispute the existence of the chips in the deck and the fact that said condition is unacceptable, its position is that same is caused by a high degree of alkalinity in the soil and not to any deficiencies in its workmanship or materials. Notwithstanding Respondent’s claim regarding the alkalinity level of the soil, Respondent never tested the soil in question before or after the installation of the kool deck. Thus, the instant record is inadequate to establish conclusively that the failure of the kool deck is due to the alkalinity of the soil. 6. Even if the alkalinity were shown to have been a factor in the failure of the deck, it is a well established principle in construction law, long applied by the Registrar of Contractors, that when a contractor performs work it accepts the surface and conditions for performing such work as being adequate to support a workmanlike result. Thus, Respondent is properly estopped to argue that it has no liability for the failure of the deck due to the alkalinity level of the soil. Respondent should have tested the soil before performing its work and if the alkalinity level was shown to be too high, causing Respondent to believe that its work might fail, then Respondent should have issued and requested that Complainant sign a clear and appropriate disclaimer based on the conditions at the jobsite. 7. Respondent further contends that it was Complainant’s responsibility to test the soil. On the contrary, just as Complainant (as the general pool contractor on the project) owes a duty to the homeowner, Respondent (as Complainant’s subcontractor) owes a duty, as the concrete “expert,” to advise Complainant of any possible problems with installing a new kool deck in the situation presented. 8. Based on all of the evidence presented at the instant hearing, the failure of the kool deck is determined to constitute unacceptable workmanship attributable to Respondent and, as such, a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws. 9. Evidence of record demonstrated that upon the failure of Respondent to comply with the requirements of the above-described directive issued by the Registrar of Contractors, Complainant ultimately utilized the in-house service and repair department of its company to accomplish an appropriate repair/replacement of the kool deck. In this regard, it was shown that Complainant incurred costs totaling $469.29. This repair cost was not shown to be unreasonable. 10. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary orders issued against Respondent. Respondent has been licensed since 1986 and therefore, its prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108. 2. The Registrar of Contractors’ authority in matters such as presented herein, includes the ability to impose restitution, in whole or in part, as a reasonable condition to reduce any possible disciplinary action against contractors. The exercise of such authority is deemed appropriate in the instant case. Therefore, based upon all the evidence, a reasonable condition in this case would consist of the payment by Respondent to Complainant of $469.29. Imposing such a condition is more preferable than imposing a disciplinary action against Respondent’s license without providing conditions to reduce or eliminate same. 3. The Registrar may order a “resitutionary remedy....as part of the Registrar’s regulatory authority to take appropriate disciplinary action against those who violate the licensing.....laws set forth in A.R.S. § 32- 1154A (1) through (24), inclusive. An administrative award of damages is not an unconstitutional exercise of administrative authority where due process rights are protected, where the authority to prohibit conduct has been well defined as in A.R.S. § 32-1154, and where judicial review is available as provided in A.R.S. § 12-901, et seq.” Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430, 434.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-09 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $469.29 to Complainant. It is further recommended that if Respondent pay or tenders the above- described sum of money to Complainant on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the above-provided penalties, that Respondent pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following this Order’s effective date shall result in the automatic revocation of Respondent’s contractor’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) (3), unless payment of any outstanding civil penalty is tendered.

Done this day, October 27, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________

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