ALJDEC

99F-1659-ROC · Registrar of Contractors · 1999-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 15, 1999. APPEARANCES: COMPLAINANT: by Gregory Edin, on his own behalf. RESPONDENT: by William Eaton, sole proprietor.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on June 15, 1999, to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Based on the testimony and evidence of record, and administrative notice of certain events and documents relative to the history of the case, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors:

FINDINGS OF FACT

1. Complainant Gregory Edin (Edin) is a homeowner who resides at 11161 East Betony, in Scottsdale, Arizona. 2. Respondent William Eaton (Eaton), dba The Eaton Company, of which he is sole proprietor, holds Arizona contractor’s license no. 126894, Class B-04. His primary business as a contractor consists of resurfacing exterior concrete with a polymer- based coating to effect any of a number of cosmetic textures and colors. A significant percentage of his work is for other contractors whose concrete is deemed deficient in appearance, while certain other of his work is done directly at the request of a homeowner or business. 3. In this matter, Eaton’s work for Edin at his residence was a function of both such contractual relationships, with all the work occurring over the span of a few days in May, 1998, after two meetings earlier that month. 4. In early May, 1998, Eaton met with Edin at his home to discuss how Eaton might correct (on behalf of and to be paid for by the original concrete contractor who was subject to a Corrective Work Order issued by the Registrar) deficiencies in color and texture of an exterior entrance- side walkway and rear patio of the residence. For reasons not germane to this matter, the home’s concrete driveway was not addressed in that financial arrangement. 5. Therefore, the driveway, although it was to be resurfaced at the same time the remainder of the concrete was done, was the subject of a separate verbal contract entered into between Edin and Eaton on the basis of that initial meeting and one subsequent meeting a week or so later, at which time Edin’s wife was present, and Eaton described (with photographs) the variety of texture and color options his company could accomplish on the various sections of concrete, including the driveway. 6. There is no dispute, and therefore no doubt, that by the time the second meeting concluded, everyone agreed on the color and “lace” texture to be applied to the entrance-side walkway and the rear patio, in order to comply with the CWO against the original concrete contractor. 7. There also is no doubt that as a result of that same meeting, Eaton and the Edins verbally agreed that for $1000.00, Eaton’s company would finish the driveway at the same time and in the same color the other work was to be done (which Eaton scheduled and completed in an expedited manner, at Edin’s request) and in a texture of the Edins’ choice. The underlying issue herein is just what texture choice was agreed to by the parties. 8. The texture Eaton’s crew applied to the driveway was a “broom” finish. Edin asserts the texture he and his wife chose was a “lace finish”, a “kool-deck” like texture similar to that used around swimming pools, and exactly the same as they had chosen for (and Eaton’s company applied on), the entrance-side walkway and rear patio. 9. Edin asserts that from the beginning of his prior complaint against the concrete contractor, and throughout that case and this, he and his wife always and consistently stated and documented their intent to have all the exterior concrete, including the driveway, the same color and texture, notwithstanding that their eventual agreement with Eaton regarding the driveway was not reduced to writing. 10. Eaton agrees that he initially understood that such uniformity was the Edin’s intent. However, he argues that as a result of the second meeting, with Mrs. Edin present, and after his explanation why the lace finish would tend to show the vehicle tire marks and stains to be expected on a driveway to a more unsatisfactory extent than the broom texture, and be more difficult to clean, that the Edins then agreed to have the broom finish applied instead. 11. Edin disputes that, and reiterates his intent to have the driveway lace-finished to match the texture of the other exterior concrete, notwithstanding his understanding that the lace texture may be more susceptible to tire marks and staining, and difficult to clean, problems he believes can be addressed, at least in part, by Eaton’s use of a sealant on the driveway but not applied elsewhere, as the parties had discussed (but with such discussion apparently taking place only after the job had been completed, when the two were attempting to resolve the dispute prior to hearing). 12. Eaton asserts that because Edin paid Eaton’s foreman Lorenzo the $1000 due upon completion of the driveway (and the sidewalk and patio), without any disagreement with the finish at that time, at least as far as Eaton knew, such that Edin must therefore have accepted the driveway as it was broom-finished, and as Eaton thought had been previously agreed, with Edin only later changing his mind at his wife’s urging. 13. Edin disputes Eaton’s assertion, arguing that his practice was, and had been on various other work done on his residence, to pay for the work done, and then seek any changes or correction of defects, etc., and that at the time he paid Eaton’s foreman, he had made it clear that the broom finish on the driveway was not what he had wanted. 14. For that reason, and because he was unable to get a satisfactory response from Eaton, Edin then filed a complaint with the Registrar of Contractors on November 27, 1998. 15. The matter was assigned to the Registrar’s inspector Di Antonio (Di Antonio), who conducted a jobsite inspection on January 14, 1999, with both Edin and Eaton present. 16. As a result of that inspection, inspector Di Antonio then directed correspondence to Edin on January 21, 1999, of which administrative notice is taken by the undersigned. In part, that correspondence provides that: …[I]t appears appropriate that we close your complaint for the following reason(s):

1. IMPROPER TEXTURE APPLIED TO DRIVEWAY: IT IS THIS INSPECTORS OPINION THERE IS INSUFFICIENT DOCUMENTATION TO DETERMINE THAT IMPROPER TEXTURE WAS APPLIED TO DRIVEWAY, NO ACTION REQUIRED BY THE CONTRACTOR.

If you disagree with this decision and additional evidence exists, you may request a hearing on this matter….(Emphasis in original).

17. After Edin timely requested hearing, the Registrar then issued CITATION AND COMPLAINT in Case No. 99-1659, charging Respondent Eaton with possible violation of A.R.S. §§ 32-1154.A.3 (and A.A.C. R4-9-108, the workmanship standard) and .7). 18. Eaton timely answered the CITATION AND COMPLAINT, and hearing was therefore duly scheduled and convened, at which time both Edin and Eaton appeared and testified, in accord with the findings hereinabove. 19. Also providing testimony was the Registrar’s inspector Mel Purchase (Purchase), who confirmed that Di Antonio had recently departed from his position with the Registrar to resume contracting in another state, and was therefore not available to provide an explanation of his conclusions, so that Purchase had been assigned the complaint and had reviewed the file compiled by Di Antonio, and had conducted his own jobsite inspection on June 14, 1999, with Edin but not Eaton present. 20. Purchase observed that the driveway was broom-finished, while the other exterior concrete was lace-finished: he opined that all of Respondent’s work met workmanship standards, a conclusion agreed to by Edin, who confirmed that his dissatisfaction was with the choice of texture applied to the driveway, and not its workmanship. 21. On the basis of the information available to him, Purchase concurred with Di Antonio that there was insufficient documentation to determine that an improper texture had been applied to the driveway; such that no action was required of Respondent. 22. At hearing, the undersigned also took administrative notice of a letter dated May 17, 1998, authored by Edin on his letterhead, addressed to Eaton, and copied to inspector Di Antonio. Edin testified that he had faxed the letter to Eaton on that same date, and Eaton stipulated that all correspondence he had received from Edin had been by fax (but that he could not reciprocate by fax, since Edin never provided Eaton a return fax number), although he did not recall seeing that particular letter before the work was done. 23. That letter states, in pertinent part, as follows: In conclusion, it is our understanding that you will resurface all concrete to our back, side, entrance-driveway with a laced finish with the very same San Diego Buff color as we had originally designated in our purchase contract [with the original contractor, not Eaton] so that all areas will have the very same appearance. You mentioned that you will make the proper billing arrangements with CJS Enterprises for your work and that we will be charged an additional $1000.00 for the additional work to be done.

24. Edin asserts that Eaton’s crew, with Lorenzo as foreman, then began the work within a few days after he faxed the letter, on about May 19 [Tuesday], 1998, and completed the job on about May 21 [Thursday], 1998, although he recalled the work being done over the weekend [and not mid- week, as reference to the calendar would indicate]. 25. Administrative notice by the undersigned of Edin’s complaint, confirms that on that form, he listed “May 19, 1998” as the “DATE WORK LAST PERFORMED”. 26. Eaton argues that the work was done sometime before May 17, 1998, although he was unable to provide any specific dates or time period. 27. On the basis of the record before this tribunal, it is found that the May 17, 1998 letter was faxed by Edin to Eaton on that date. 28. Then, on the basis of the verb tense and grammatical construction employed in that letter, it is further found that the letter was drafted and faxed by Edin before Eaton’s crew began work, although the time period between those two events cannot be ascertained with any certainty. 29. Finally, the undersigned finds that the letter of May 17, 1998 provided sufficiently clear actual or constructive notice of Edin’s intent that the texture throughout, including the driveway, be the same lace finish, such that any ambiguities resulting from the terms of the verbal contract were thus resolved, at least relative to texture.

APPLICABLE LAW

Arizona Revised Statutes (“A.R.S.”) §32-1154.A provides, in relevant part, that a holder of a contractor’s license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … The Citation and Complaint names A.A.C. R4-9-108 as the rule charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW

1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated either of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). A “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the 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 1182 (rev. 6th ed. 1990). 2. Complainant fails to demonstrate any fraudulent conduct on the part of Respondent, so no violation of that term of A.R.S. § 32-1154.A.7 has been proven. 3. Complainant fails to demonstrate any unworkmanlike efforts by Respondent, so no violation of A.A.C. R4-9-108 and A.R.S. § 32-1154.A.3. has been proven. 4. However, with respect to Respondent’s alleged wrongful conduct, it is found and concluded that the evidence demonstrates, by a preponderance, that Respondent Eaton wrongfully, though unintentionally, applied the wrong texture to Edin’s driveway, notwithstanding that the broom finish applied might otherwise be considered, in Eaton’s experience, more appropriate for a driveway than the lace finish desired.

5. Nonetheless, it is further concluded that to the extent remedial action is required of Respondent to correct the driveway texture, there has been no prior bargained-for exchange that the lace finish intended would include the special sealer available. That must remain subject to a further negotiated meeting of the minds.

RECOMMENDED DECISION

In light of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order (thirty-five days after the date mailed), Respondent Eaton’s Class B-04 license be suspended until the Registrar receives proof that Respondent has accomplished appropriate corrective action to address the texture of Complainant Edin’s driveway, consistent with the above. IT IS FURTHER RECOMMENDED that, if Respondent accomplishes that corrective action in a proper workmanlike manner on or before the effective date of the Registrar’s Order, then no license suspension shall be imposed, and the entire Citation in Case No. 99-1659, and the Complaint upon which it is based, shall be closed. Done this day, June 23, 1999.

______________________________________ Anthony Halas Administrative Law Judge

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

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

By ___________________________

-----------------------

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