ALJDEC

99F-2264-ROC · Registrar of Contractors · 2000-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2000. APPEARANCES: Richard and Patricia Kirkpatrick appeared and represented themselves. Respondent failed to appear but a corporate officer of Respondent, Jim Harrison, sent a letter to this office on April 19, 2000 explaining his absence and setting out his defense. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ The hearing in this matter was held on April 17, 2000 and the matter was held open until May 17, 2000 to allow Complainants to submit additional evidence. The issues in the instant case are (1) whether Respondent failed to perform in a workmanlike manner on a concrete resurfacing job in violation of A.R.S. § 32-1154(3) and A.A.C. R4-9-108, (2) whether Respondent committed a wrongful or fraudulent act which resulted in substantial harm to any person in violation of A.R.S. § 32-1154(7), and (3) whether Respondent failed to take appropriate corrective action within a reasonable period of time after the Registrar issued a corrective work order in violation of A.R.S. § 32-1154(23). Complainants have proved by a preponderance of the evidence that Respondent violated A.R.S. §§ 32- 1154(3), (7) and (23). . . . FINDINGS OF FACT 1. On April 4, 1998, Complainants entered into a contract with Respondent to complete surfacing over extent concrete on the front patio, driveway and carport of Complainants’ home. Complainants paid Respondent the full amount of the contract, $4,424.50, on July 23, 1998. 2. During September, 1998, Complainants began to notice that the surface applied by Respondent on the driveway and carport was flaking. 3. Respondent made some efforts to correct the problems on the driveway, but these efforts were insufficient . Instead of heeding the suggestion of the Complainants to remove the entire surface and start over again, Respondent continued to “spot-treat” the problem, grinding away the applied surface in certain spots and reapplying the surfacing. The result was a blotchy, unsightly surface as demonstrated by the pictures that were admitted into evidence. 4. On February 3, 1999, Complainants filed a complaint with the Registrar of Contractors alleging poor workmanship. Inspector John Ratcliff was assigned to the matter and performed a job site investigation. As a result of the investigation, Inspector Ratcliff issued a corrective work order on April 1, 1999. The order directed Respondent to correct the blistering areas and other areas where Respondent had failed to apply the surfacing. The order also directed Respondent to correct the blistering and pitting on the front entry sidewalk and the pitting on the patio. 5. On April 16, 1999, Respondent’s work crew arrived at the house and some sanding and resealing was done but ,again, some areas were not corrected. 6. Some eight months of time then elapsed, and apparently (although it is unclear from the testimony) the case was closed. After the lapse of eight months, the bubbling and flaking continued and Complainants asked to reopen the matter. The citation and complaint in this case were then issued. 7. On the day of the hearing in this matter, Inspector Ratcliff returned to the jobsite to complete a prehearing inspection. He testified that the problems identified in the corrective work order had not been addressed. He stated the blistering and peeling still remained and that the attempted corrections were “totally inappropriate.” The inspector could see (and the photographs verify) areas where the Respondent had attempted to utilize different remedies with the result that the surface appeared blotchy and, to echo the words of the inspector, “it looked horrible.” The inspector testified that in his opinion, the problem was not with the substrate, as claimed by Respondent, but rather with the method of application. This opinion was based in part on the fact that other resurfacing at the jobsite had no problems of adhesion and the concrete under those surfaces was the same as the concrete under the problem areas. The inspector also pointed out that the position of the Registrar’s Office is that technology exists for the contractor to test the substrate to ensure proper adherence and once the contractor applies over the surface, he accepts the surface and becomes responsible for any failure of the materials to adhere to the substrate. 8. The inspector further testified that the only way to properly remedy the problem areas at this jobsite is to remove the surface that was originally applied and start the resurfacing process over again. 9. The undersigned has considered the Respondent’s two year complaint history in fashioning the recommended decision in this case. CONCLUSIONS OF LAW 1. 1. A.R.S. §32-1154(A) provides in pertinent part:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (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. * * * (23). Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.

AAC R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (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). 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 (6th ed. 1990). 3. The evidence demonstrates that Respondent violated A.R.S. § 32- 1154(3) by failing to perform in a professional and workmanlike manner. The inspector’s testimony in this regard is clear: the job is “totally unacceptable.” By the same token, the inspector’s testimony as well as the testimony of the Complainant establishes that Respondent violated A.R.S. § 32-1154(23) by failing to take appropriate corrective action to comply with the corrective work order. The evidence also establishes that Respondent violated A.R.S. § 32-1154(7). 4. Respondent’s recent complaint history is troubling. Merely ordering Respondent to correct the deficiencies would not serve the purposes of Title 32. This is evident not only from the Respondent’s recent complaint history, but also Respondent’s failure, despite the passage of over one and one-half years, to correct the problems in this case. Rather, it is more appropriate in this case to order that Respondent return the purchase price of the contract, $4, 424.64, to the Complainants. Sun Power v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990). Furthermore, the driveway and the carport must be completely stripped of the surface applied by Respondent in order to assure that any resurfacing will adhere to the substrate. Respondent should bear the cost of removing the surfacing he applied. . . . RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Registrar revoke Respondent’s Class C-05 license unless, prior to the effective date of the Registrar’s order in this case, written proof is received by the Registrar that Respondent: 1) has paid or tendered to Respondent the amount of $4, 424.64; 2) has removed the surfacing applied by Respondent to the driveway and carport and returned the substrate to its original condition so that new surfacing can be properly applied. In the event Respondent submits written proof in a timely manner that the above conditions have been satisfied, then this citation and complaint should be closed. Done this day, June 5, 2000.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

Done this day, February 3, 2000

______________________________________ Greg Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater 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