ALJDEC

98F-2593-ROC-rhg · Registrar of Contractors · 1999-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 16, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president, George Eagan. 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. At the outset of the scheduled rehearing, Complainant averred that only the issue of ponding water on the rear patio deck remained as unresolved and therefore, the instant hearing would be limited to only said issue. 2. Pursuant to written contract, Complainant retained Respondent for the purpose of accomplishing specified landscaping related work. In accordance with said contract, Respondent was to place a concrete patio in the rear of Complainant’s residence. Although Respondent accomplished the concrete work in question, Complainant contends that there has been an ongoing problem with standing water on said patio subsequent to rainfall or whenever said area is washed- down with a hose. 3. The following salient facts were adduced at the hearing and are very important to note: a. A jobsite inspection by the assigned inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish several items of corrective work within a stated period of time. Evidence of record demonstrated that Respondent accomplished all required remedial work. b. The above-described Agency directive specifically omitted any order referable to the alleged deficiency in ponding water on the patio due to the inspector’s determination that the water ponding was not excessive and that any water that remained after rainfall or subsequent to use of a hose on the patio was within acceptable tolerances for good and proper workmanship. c. The original inspector assigned to this Complaint appeared at the instant hearing and testified that on the day of the original jobsite inspection he observed water on the patio and waited approximately thirty (30) minutes after his arrival on the scene to measure the depth of the water. He ultimately measured the water depth using a carpenter’s shim that was 4/32” in size and observed that the remaining water did not come over the halfway point on said shim. d. The inspector testified that the Registrar of Contractors utilizes a guideline for ponding water on concrete, as set forth in its Minimum Workmanship Standards booklet, that indicates that any standing water on patios should not be greater than 3/32”. Thus, based on the aforementioned measurements, the assigned inspector reached his conclusion that there was no construction deficiency on the patio. e. On or about January 7, 1999, the assigned inspector for the Registrar of Contractors conducted a pre-hearing inspection of Complainant’s property, wherein he determined that all of the items on his Corrective Work Order had been accomplished. The inspector and Complainant again discussed the issue of the ponding water on the patio and Complainant was informed that the inspector was still of the opinion that the standing water situation was within acceptable tolerances. Complainant was not satisfied with this inspector or his opinion and ultimately contacted the Registrar seeking that his patio be inspected by another Registrar inspector. f. The Registrar ultimately consented to Complainant’s demand for another inspector’s opinion and directed that his Chief of the Compliance Department, Phil Pettice (“Pettice”), inspect and give a “second opinion” on the claimed water ponding problem. g. Pettice appeared at the instant hearing and presented testimony that he conducted an inspection at Complainant’s home. He observed water on Complainant’s patio and utilized a quarter and dime, stacked upon one another, as a measuring device to determine the depth of the water on the patio. Pettice testified to his many years of experience as an inspector for the Registrar of Contractors and that it has been an accepted practice within the Agency to use a quarter with a dime on top to measure alleged ponding of water on concrete slabs. Moreover, he indicated that he measured two sets of quarters and dimes before he arrived at Complainant’s home and both sets measured exactly 3/32”. h. Pettice testified that when he inserted the quarter/dime measuring device into the water remaining on the patio, that the water failed to even come over the quarter. Thus, Pettice also determined that the standing water complained of was within acceptable tolerances for minimum workmanship standards. i. Although Complainant disagrees with the measuring methods utilized by the Registrar of Contractors and the 3/32” standard applied by that Agency, he was unable to present sufficient evidence that other methods of measurement would be more appropriate or that the Registrar’s standard was not in accordance with those applied in the concrete industry.

4. Complainant had the burden of proof to establish that the ponding condition complained of was beyond the minimum standards of the industry for good and acceptable workmanship. The weight of the evidence of record militates for the conclusion that the water which may be present on Complainant’s patio after rainfall was not indicative of substandard concrete patio workmanship. 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 24, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of June, 1999, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826