ALJDEC

99F-2524-ROC · Registrar of Contractors · 1999-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 1999. APPEARANCES: APPELLANT: Robert and Martha Foster. RESPONDENT: Tom Allen, president and authorized representative.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on September 20, 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 procedural 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 Robert Foster (Foster) and his wife Martha Foster (Mrs. Foster) reside at 6284 West Melinda Lane, in Glendale, Arizona. 2. Respondent Far West Supply, Inc. (Far West) is a corporation, and holder of License No. 136787, Class C-05. Tom Allen (Allen) is the company’s president and authorized representative. 3. On March 3, 1999, the Fosters filed a complaint with the Registrar of Contractors regarding the finish Respondent had applied, in December 1997, to the existing exterior patio concrete slab at their residence, asserting that the finish was dull and mottled. 4. On April 15, 1999, the Registrar’s Inspector Lewis King (King) conducted a jobsite inspection with the Fosters present; Allen communicated his inability to attend, but did not request that the inspection be rescheduled. 5. As a result of his inspection, King then issued a Corrective Work Order (CWO) on April 19, 1999, in which he determined that:

STAINED PATIO CONCRETE HAS DULL FINISH. CONTRACTOR TO DETERMINE CAUSE AND CORRECT CONDITION.

6. When the complaint was not administratively resolved, the Fosters requested hearing, and on June 9, 1999, the Registrar of Contractors issued CITATION AND COMPLAINT in Case No. 99-2524, charging Respondent with possible violations of A.R.S. §§ 32-1154.A.3 (and A.A.C. R4-9-108, the workmanship rule), .7, and .23. 7. Respondent, through Mr. Allen, timely filed its written response on June 16, 1999, contending that the job was performed and completed according to contract; that a penetrating sealer only had been contracted for; that the finish applied was mottled in appearance by its nature; and that the customer had been offered a high shine finish that would cost a lot more, but didn’t want it. 8. At hearing, Mr. and Mrs. Foster testified on their own behalf; inspector King testified to explain his two jobsite inspection findings and conclusions; and Mr. Allen testified for Respondent, and also offered Exhibits 1 through 6, each of which was marked and admitted without objection, and given the weight deemed by the undersigned appropriate to its relevancy and probative value. 9. On the basis of all the testimony and evidence, and administrative notice of the documents contained in the record, the following is determined: A. Sometime within a few weeks (according to the Fosters) or a few days (according to Allen) before the work began on December 10, 1997, the Fosters and Allen (on behalf of Far West) entered into a verbal agreement to have Far West apply an “acid-oxidized” finish to the Fosters’ pre-existing bare concrete slab for $737.99, which had been paid in full when the work was completed. B. The work was essentially completed on December 12, 1997, with an additional sealer laid three days later on December 15, 1997, and it is undisputed that Respondent has done nothing further since that date to address the Fosters’ dissatisfaction, although its representative (not Mr. Allen) did view the patio in about April, 1998, after Mr. Foster had directed a number of telephonic complaints to Far West, and Allen was present on September 17, 1999, with the Fosters, when inspector King conducted his second jobsite inspection just prior to hearing. C. On whatever day the agreement was reached, after discussion at the Fosters’ residence mostly between Mrs. Foster and Allen (although Mr. Foster was present), the price was calculated based on the square footage of the patio concrete to be treated. Although the record does not contain a definitive price per square foot, it is noted that the Fosters subsequently calculated the area treated at approximately 270 s.f., while Allen considered the square footage to be exactly 477. D. Although the exact terms of the agreement were not reduced to writing, it is readily apparent and found by the undersigned to be undisputed that at the time of the agreement Mrs. Foster presented Allen with a “KEMIKO CONCRETE FLOOR STAIN” brochure [which was included with the Fosters’ complaint to the Registrar, and of which administrative notice is taken], and that her purpose in doing so was to convey the exact high sheen or polished finish result she desired, similar to marble. E. Allen confirmed his prior familiarity with that brochure and that competitor’s similarity of process in acid-oxidizing concrete, and his understanding that Mrs. Foster desired a high sheen finish, but asserted at hearing - although not apparently when the agreement was reached - that the brochure was misleading, at least relative to the results the Fosters could expect, because of the glossy effect of the brochure, and because the results demonstrated in the brochure were interior rooms (including a bathroom his company had done) rather than exterior patio settings. F. Allen conceded he had provided no written disclaimers to the Fosters as to what could be expected as the end result (which he now routinely does with every prospective customer - see Exhibit 1), but he contended that he conveyed that information to Mrs. Foster when they met. G. Mrs. Foster conceded she was given a general understanding of the limitations of the process by Allen, but contended that Allen gave no warning or caveat that the finish they had agreed on would be anything less than high sheen, nor did he offer any higher-priced alternative or additional means of accomplishing the high sheen effect. H. Inspector King described his observations on jobsite inspections conducted on April 15 and September 17, 1999, based on the Fosters’ complaint that the patio concrete finish was too dull. He noted his initial inspection had included review of the KEMIKO brochure, and its written and visual representations, which he considered to indicate that the overall effect would have some sort of sheen, as the Fosters intended but which was not the result accomplished, which was indeed dull throughout. I. In addition, inspector King noted the finished effect on the north and east section of the patio slab to be substantially lighter, as if the bare concrete was showing through, or the finished effect was wearing away, contrary to the Registrar’s standards requiring a uniform effect, absent some express waiver by the homeowner not apparent in this case. J. Inspector King’s conclusion at the time of his initial inspection was that the acid-type finish process applied by Respondent did not appear to have been done correctly, and did not meet the workmanship standards the two-year statutory warranty period required. K. King’s comparative observation at the time of his second inspection was that the finish was essentially the same, that is, no worse than he had first noted, which was in accord with the testimony of the Fosters that the overall dullness, and the lighter section on the north and east, had been notably that way since a few weeks after the work had been done, with no appreciable change since. L. Finally, inspector King opined that no remedial work had been done in the interim between his inspections, consistent with the testimony of both Allen and the Fosters. M. Allen questioned the extent of the dirt on the patio as something that might affect the inspector’s observations regarding the finish, but the Fosters asserted, credibly, that the patio was regularly washed, and had been shortly before each of the Registrar’s inspections, and inspector King discounted the significance of dirt on his conclusions. N. Allen also opined that the dullness in general and lightness of the north east section was due to both the inherently variable result of the acid-oxidizing process on any particular slab of concrete (and the extent to which it might have been broom-finished, etc.) as well as the result of time and exposure of the finish to the elements. O. The undersigned finds that while the variable nature of the process and the passage of time may have contributed to some change in the subjective appearance of the finish, the most substantial and significant change, at least relative to the Fosters reasonable expectations, was apparent within a matter of weeks after the work was done on December 12, 1997. P. The undersigned further finds that while alternative finish processes (e.g., polyurethane) may have been available for additional money at the time the agreement was reached, as Allen testified, which might have resulted in a more glossy, less matte-like effect, those processes were never offered to the Fosters, notwithstanding their expectation, given the agreed-upon price, that the final effect would be quite similar to that clearly shown in the KEMIKO brochure.

APPLICABLE LAW

Arizona Revised Statutes (“A.R.S.”) §32-1154.A provides, in relevant part, that a holder of a 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. … 23. Failure to take 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 written directive from the Registrar.

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 any one 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 (A.R.S. § 32-1154.A.7) on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct (A.R.S. § 32-1154.A.7) and unworkmanlike efforts (A.R.S. § 32-1154.A.3 and A.A.C. R4- 9-108), Complainant has sustained his burden of demonstrating violations. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). 4. In this instance, the reasonable benefit of the bargain to the Fosters, as a result of their verbal contract with Allen on behalf of Far West, would have been the high sheen, marble-like finish clearly represented in the KEMIKO brochure - as viewed by the undersigned - and just as clearly communicated to Allen, to which he failed to seek or gain sufficient waiver of the limitations of the process he was selling, or, if necessary, to bargain for additional monies for the result the Fosters desired. 5. The undersigned therefore finds and concludes that the preponderance of the evidence sustains Complainant's burden of demonstrating Respondent’s failure to provide such a finish, which constitutes the failure in workmanship, and the wrongful act, for which it was cited by the Registrar. Given that the very nature of Respondent’s acid- oxidizing process is meant to appeal to the aesthetics of its customers - this is a cosmetic, rather than functional effect - it is further concluded that Respondent’s wrongful failure to minimally meet Complainant's aesthetic expectations resulted in substantial harm. 6. In addition, it is uncontroverted that no one on behalf of Respondent Far West took any corrective action at any time to address the Corrective Work Order issued by inspector King for the Registrar as a written directive on April 19, 1999. Because there was no valid justification shown for such failure to act, the undersigned finds and concludes that the evidence sustains Complainant's burden of demonstrating a violation of A.R.S. § 32-1154.A.23, as cited.

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 issuance), the Class C-05 license of Respondent Far West Supply Inc., be suspended until the Registrar receives proof that Respondent has accomplished complete, appropriate, and effective corrective action with regard to the finish applied to the patio concrete slab of Complainant Foster. IT IS FURTHER RECOMMENDED that if Respondent accomplishes proper corrective work on or before the effective date of the Order, then no active license suspension shall be imposed, and the CITATION AND COMPLAINT in Case No. 99-2524 be closed. Done this day, September 27, 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 ___________________________

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