ALJDEC

98F-F0194-ROC · Registrar of Contractors · 1999-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 1999 at 8:30 a.m. APPEARANCES: Complainant appeared on his own behalf; Respondent appeared through its qualifying party, Howard C. Beach. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ The parties presented evidence and testimony and, based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. STATEMENT OF FACTS The Registrar has issued Class B License Number 063479 to Respondent, a corporation. In May 1996, Respondent contracted to build a residence in Cottonwood for Complainant and his companion, Bobbi Peterson. On September 1, 1996, Complainant and Ms. Peterson moved into the residence, which is located at the end of a cul-de-sac and is lower than the road leading to the residence and surrounding structures. Shortly after Complainant moved into the residence, he noticed that rainwater did not appear to drain away from the front of the residence. He therefore had installed additional guttering to direct rainwater away from the residence. On January 23, 1998, Complainant made a complaint to the Registrar, alleging among other things that the front yard drained improperly and that the house seemed to be settling. By the second or third week of February, 1998, when the Registrar’s inspector Mark Schweiger met with the parties to perform a courtesy inspection, Respondent had graded the residence’s front yard to direct rainwater and runoff from the street away from the residence and had corrected most of the remaining items to Complainant’s satisfaction. The only item Respondent had not corrected was a ¼” variance in the floor the computer room, located at the front of the residence next to the garage. Regarding that item, on February 16, 1998, Complainant had agreed to “absolve [Respondent] from having to remove carpet in the computer room, filling low spots approximately ¼ inch + or -, with latex glue and replace the carpet” in return for $650, which Respondent paid. The parties’ agreement expressly “[did] not void the warranty or responsibility of [Respondent] against major structural damage if such damage should occur” as a result of the residence continuing to settle. As a result of Respondent’s corrective work and the parties’ settlement, Inspector Schweiger closed the complaint. In August 1998, Complainant again contacted Respondent to express concerns about various additional items. In addition to the specific concerns, Complainant noted a “‘hollow’ sound in the computer room as if no solid ground [were] below the concrete foundation” and questioned whether the settling of the foundation could cause many of the other problems noted, such as drywall and stucco cracking, doors sticking, baseboards raising up, and caulking coming up. Complainant suggested that an engineer be retained to determine if the foundation were causing the continuing problems Complainant and Ms. Peterson were experiencing with the residence. In September 1998, Inspector Schweiger reopened the complaint after he received a letter from Complainant requesting that the matter be reopened and that an administrative hearing be scheduled. In early November 1998, Respondent obtained and provided to Complainant and the Registrar a report from Adrian R. Pollack, P.E. of Earth Engineering Associates, Inc. summarizing his inspection of the residence. Mr. Pollack’s report noted that newly constructed structures are expected to settle and that structural damage may result from “deferential settlement,”[1] or settlement that is not uniform but instead causes some areas of the slab to move more than others, resulting in an uneven surface. According to Mr. Pollack, a variation of ¾” over a short distance is “neither desirable nor tolerable.” Based on his measurements in the variation of various areas of Complainant’s residence, which did not exceed ¾”, Mr. Pollack concluded that “there is no evidence pointing toward a structural problem” and that most of the items Complainant expressed concerns about were “normal ‘punch list’ items, correctable by the contractor in the normal course of following up on warranty.” The floor plan attached to Mr. Pollack’s report showed a variance of ¼” from the middle of the computer room to the edge of the house. In the fall and winter of 1998, Respondent arranged for Mike Serna, an appropriately licensed contractor with whom Respondent had worked in the past, to correct many of the items about which Complainant had expressed concern. Complainant and Ms. Peterson expressed satisfaction with the warranty work that Mr. Serna had performed at Respondent’s behest. At some point between February 19, 1998, and the prehearing inspection on February 19, 1999, Respondent installed a 3" drain on the driveway and Complainant had substantial landscaping work done, including construction of a culvert. These measures, along with the gutters that Complainant installed at the front of the residence and grading that Respondent performed on the front yard, substantially improved drainage. After a hard rain, however, water still pools against the foundation at the front of the house for at least a short time. The Cottonwood area has no specific requirements regarding drainage. Inspector Schweiger testified that, absent specific local ordinances, if water only collects around a foundation after a hard rain and does not remain standing more than 48 hours, the drainage is probably adequate. Inspector Schweiger also testified, based on his prehearing inspection, that applicable industry standards permit no more than ¾” of vertical variation over 10' of horizontal floor or slab. Although Inspector Schweiger agreed with Mr. Pollack that variation across the computer room was only ¼”, in Inspector Schweiger’s opinion the variation exceeded what is permissible because the room is so small. By extrapolating the variation observed in the computer room over a distance of 10', Inspector Schweiger testified that the variation in fact exceeded ¾”.[2] Inspector Schweiger also opined that applicable industry standards required replacement of the two cracked ceramic tiles in the entryway and passage from the computer room into the garage, if replacement tiles could be located or purchased. The variations elevation in those areas equaled what was permissible. If the variations increased to any appreciable degree, corrective action would be required but, under the present circumstances, the variations were acceptable. Inspector Schweiger also opined that Respondent’s repair of the crack between the foundation and patio slab at the rear of the house with caulking was adequate and acceptable. Respondent should repair a crack in the stucco at the corner of the sliding glass door leading to the porch, however. The Citation and Complaint issued by the Registrar advised Respondent that, if it were found in violation of any contracting law, its prior disciplinary record of final Registrar of Contractors’ orders might be considered in mitigation or aggravation. Accordingly, notice is taken of official records of the Registrar of Contractors, which reveal that, if the Registrar accepts this recommended decision, it will be the only final agency order against Respondent on the Registrar’s current record. Therefore, Respondent’s prior record is deemed to be excellent and, thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. In addition, Complainant and Ms. Peterson acknowledged that Respondent has been responsive to Complainant’s concerns and has conducted himself throughout this dispute in a professional and courteous manner. Most of Complainant’s concerns seemed to be related to settling of the residence over 2-½ years and Respondent’s failure to remedy all Complainant’s concerns by the time of hearing can be attributed at least in part to the time it took for various problems to manifest. CONCLUSIONS OF LAW In this administrative proceeding, Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence. See Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). The evidence presented at the hearing supports a conclusion that Respondent violated A.R.S. § 32-1154(A)(3)[3] in failing to replace the two cracked tiles, to level the computer room, and to repair the stucco cracks outside the master bedroom. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar suspend Respondent’s Class B License No. 063479 on the effective date of the Registrar’s order, thirty-five days after the Registrar has mailed it to the parties. It is further recommended that, if on or before the effective date of the Registrar’s order Respondent provides the Registrar with written proof that he has performed appropriate corrective work in a professional and workmanlike manner to remedy the problems identified at conclusion of law No. 2, no license suspension take place and Case No. 98-2208 be closed.

Done this day, March 1, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________

----------------------- [1]“Deferential” means “respectful.” Webster’s Encyclopedic Unabridged Dictionary of the English Language at 379 (1989 ed.) Presumably, Mr. Pollack meant “differential,” which means “of or pertaining to difference or diversity” or “exhibiting or depending upon a difference or distinction.” Id. at 402.

[2]The condition of the floor apparently has worsened since the parties’ February 16, 1998 agreement to settle this aspect of their dispute. At the hearing, Complainant and Ms. Peterson agreed that, since the circumstances giving rise to the settlement no longer existed, they would return the $650 to Respondent when he leveled the floor in the computer room.

[3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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