ALJDEC

99F-2314-ROC · Registrar of Contractors · 1999-10-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 1999 APPEARANCES: Anders Broman, Complainant, in his own behalf L. Don Puckett, Qualifying Party, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings Of Fact The Respondent built the Complainant’s home in Fountain Hills, Arizona. The Complainant occupied the home in June of 1998 and shortly thereafter noted water coming into his garage after a storm. A portion of the driveway in front of the garage inclines toward the garage causing water to collect and seep across the front of and into the garage. The evidence indicated that there were excavation problems on part of the property resulting in the incorrect slope of the driveway. The aggregate driveway was constructed by a subcontractor, Don Rockwell. Portions of the driveway are either too smooth (underexposed) or have the rock coming out of the concrete (overexposed). The Complainant filed his complaint with the Registrar of Contractors (Registrar) on February 10, 1999. Inspector Marty DiAntonio (DiAntonio) performed an inspection of the Complainant’s home and on April 5, 1999 issued a Corrective Work Order (CWO). The CWO required the Respondent to correct the driveway sloping problem and the inconsistent aggregate problem by appropriate means. The Respondent through Rockwell offered to install a deco drain at the front of the garage entry in order to keep the water from entering the garage and to “touch up” the aggregate problem. The Complainant wanted the entire driveway replaced and the matter was set for the instant hearing. DiAntonio is no longer with the Registrar’s office and a pre-hearing inspection was done by Inspector Mel Purchase (Purchase). Purchase testified regarding the improper slope of a portion of the driveway and that he considered parts of the driveway to be below industry standards because of over and under exposure of the aggregate. Conclusions Of Law The allegations of the Citation and Complaint concern A.R.S. §32- 1154(A)(3), violation of any rule, specifically A.A.C. R4-9-108 workmanship; (A)(7), a wrongful or fraudulent act with substantial injury; and (A)(23), failure to take appropriate remedial action. The evidence establishes that the slope of a portion of the driveway is not constructed as designed and the water seeping into the garage is a consequence of this error. The evidence also establishes that the aggregate in some portions at the bottom of the driveway is unacceptably overexposed while other areas are underexposed. The above facts show a failure to properly supervise the concrete subcontractor and constitute violations of A.R.S.§32-1154(A)(3), A.A.C. R4- 9-108 and (A)(7), wrongful act with substantial injury as to the Complainant. No violation of (A) (23) is found because the Complainant would not approve the corrective work suggested by the Respondent and the concrete subcontractor. Purchase testified the installation of a Deco Drain was a reasonable correction for the drainage problem and that an acid and power washing plus sealing would possibly bring the aggregate to a satisfactory workmanship standard. Even if this method does not achieve the necessary result, it does not relieve the Respondent of making the necessary corrections. It is generally not the responsibility of the Registrar to specify exactly how a correction is to be accomplished. The Respondent is charged with the responsibility of making appropriate and satisfactory corrections. Although the Complainant does not have unfettered discretion to dictate how the corrective work will be accomplished, the Respondent should be well aware that having already been found in violation, failure to satisfactorily correct will have drastic consequences. Presumably a licensed contractor has the expertise and knowledge required to make a determination of the acceptability of the work. In doing corrective work, a Respondent should ensure that the work will meet and preferably exceed all applicable standards. If the corrective work is not properly done, then the contingent penalty will take effect. Recommended Order In view of the foregoing it is recommended, commencing on the effective date of the order entered in this matter, that the Class B license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the water leakage into the garage and the inconsistent areas of the aggregate driveway; It is further recommended that if the Respondent accomplishes the above described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, October 13, 1999.

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of October, 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