ALJDEC

98F-2615-ROC · Registrar of Contractors · 1998-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 23, 1998. APPEARANCES: Complainant appeared through its president and qualifying party, Jim Moss. Respondent appeared through its president and qualifying party, Abe Riveras. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ This matter came on for a consolidated hearing with Docket No. 98- 2829-ROC, since both involved similar witnesses and issues. A separate Recommended Decision of Administrative Law Judge has been prepared for each of the cases. 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. Pursuant to contract, Respondent was retained by Complainant, the general contractor, to pour a salt finish red colored concrete deck around a swimming pool owned by Jim Heinz. 2. The concrete deck installed by Respondent was the wrong color and poorly done. The parties agreed that Respondent would perform remedial repairs by applying kool deck on the concrete deck. 3. Subsequent to Respondent’s application of kool deck on the salt finished concrete, the kool deck began to bubble and delaminate from the concrete. 4. Complainant filed a complaint with the Registrar of Contractors alleging that Respondent’s application of the kool deck constituted deficient workmanship. 5. As a result of the filed complaint, the Registrar’s assigned inspector performed an inspection of Respondent’s work at the Heinz residence. That jobsite inspection resulted in the issuance of a Corrective Work Order dated June 12, 1998, by the Registrar directing Respondent to determine the cause of the failure of the kool deck and to correct the deficient application by appropriate means. It is uncontroverted that Respondent failed to timely comply with the Registrar’s written directive. 6. Respondent does not dispute the field conditions of its delaminating kool deck application. However, Respondent’s position is that the deficient conditions are caused by a high degree of alkalinity in the soil affecting the bonding of the kool deck to the salt finished concrete substrate and not due to any deficiencies in its workmanship or materials.. 7. Respondent is found to be responsible for the delamination of the kool deck product from the salt finished concrete substrate. It is a well established principle of construction law, long applied by the Registrar of Contractors, than when a contractor, such as Respondent, performs work it accepts the surface and conditions for performing such as being adequate to support a workmanlike result. Both the homeowner and Complainant, as general contractor, relied on Respondent’s superior knowledge and expertise in the scope of work performed by Respondent. If Respondent felt that it could not have properly applied the kool deck in a workmanlike manner, then it should have refused to perform the application unless it received a disclaimer from the homeowner and the Complainant. 8. Based upon all the evidence presented at the instant hearing, the failure of the kool deck installation performed by Respondent is determined to constitute unacceptable workmanship. It is further determined that Respondent’s failure to properly perform the kool deck installation and to comply with the Registrar’s written directive to timely perform remedial repairs to its deficient workmanship are deemed wrongful acts which have substantially injured both the Complainant and the homeowner.

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) (7), (23) and (3); namely Rule R4-9-108. 2. The Registrar of Contractors may impose a civil penalty of not to exceed $500.00 on a contractor, such as Respondent, for each violation of A.R.S. § 32-1154(A)(23). A.R.S. §32-1154 (D). The evidence of record supports the partial exercise of that authority by the Registrar in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s Class C-09 license be suspended until the Registrar of Contractors receives written proof that Respondent has properly complied with the Registrar’s Corrective Work Order dated June 12, 1998, the terms of which are incorporated herein by reference. It is further recommended that if Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place and the citation and complaint in this matter shall be closed. It is further recommended, in addition to the above-provided penalty, if any, that Respondent pay the sum of $150.00 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 that civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Respondent’s contracting 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, December 8, 1998.

_________________________________ BRIAN BRENDAN TULLY 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