ALJDEC

99F-F0188-ROC · Registrar of Contractors · 1999-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|ANITA REHLING & JOHN WHITELAW, |(|Case No.: F99-0188 | | |(| | |Complainants, |(|Docket No.: 99F-F0188-ROC | |vs. |(| | | |(| | |License No. 118636, Class B of |(|Recommended | |THE LARKEY CONSTRUCTION CO., INC.|(|Decision and Order | |(CORP), |(| | | |(| | |Respondent. |(| | | |(| | | |(| |

HEARING: Wednesday, July 14th, 1999; 1:30 p.m. Appearances: The Complainants, Ms. Anita Rehling and Mr. John Whitelaw, appeared and represented themselves. The Respondent was represented by the President and Qualifying Party, Mr. Steven Lyn Larkey. Administrative Law Judge: Grant Winston

This matter was brought on for administrative hearing on July 14th, 1999. Testimony was taken and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent in this case, The Larkey Construction Company, Inc., Steven Larkey, President and Qualifying Party, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License Number 118636.

2. The Complainants are a married couple residing in Sedona, Arizona. This matter concerns a written contract for construction performed by Respondent on the Sedona residence of the Complainants.

3. The contract between the parties was executed on April 14th, 1998. The price term of the contract was $6,463.00. The work to be performed included labor and materials necessary for the completion of: “footing & garage slab, work consisting of footing excavation, install footing rebar, pour concrete for footings and garage slab, install ground wire for electric panel, install 6” sewer line under footing - 1 section of sewer pipe.” Also contained in the contract was a “Rock Clause,” stating: If Larkey Construction Co., Inc. encounters solid rock while excavation [sic] for footings and garage slab, there will be an additional cost of $150.00 per hour for rental of jack hammer and back hoe.” All work was contracted to be performed in accordance with the drawings and specifications submitted, and completed in a substantial workmanlike manner.

4. Plans for the work were drawn and approved. The Respondent commenced excavation on July 14th, 1998. As the Respondent’s work continued several of its defects became obvious to the Complainants. The parties met sometime on November 9th, 1998, and during that meeting the Respondent agreed to correct all these deficiencies in his work. Respondent failed to make appropriate corrections. Complainants filed a Complaint with the Registrar of Contractors on December 9th, 1998.

5. Registrar of Contractor’s Inspector Mr. Mark R. Schweiger conducted a job-site inspection on December 23rd, 1998. Mr. Schweiger issued a Corrective Work Order dated February 5th, 1999. Mr. Schweiger ordered the Respondent to make several corrections to the work.

6. Among the items referenced by the Inspector in his Corrective Work Order was a charge to the Complainants for jack-hammering through solid rock pursuant to the contract. Complainants dispute the necessity of this charge, and dispute the existence of solid rock. Complainants seek reimbursement for the amount they paid Respondent for this. Mr. Schweiger concluded, and it is also found here, that this is a monetary dispute that would be more properly resolved in civil court. If not civil court, this would seem to be a claim more proper to a recovery fund claim. Complainants also seek reimbursement for other items which are also good faith monetary disputes more properly subjects for resolution in civil court. These items include double billing and pricing beyond the parties’ agreement for anchor bolts, and corrective work to subsequent aspects of the construction performed by another contractor, a Mr. Bolton, due to the defects and deviations from the plans as constructed by Respondent. It is found, however, that Respondent did deviate from the plans and specifications, and as such caused the subsequent contractor to have to modify his construction in many areas to “finagle” the construction to fit the areas where it joined to the Respondent’s work.

7. Also at issue here was an allegation of Respondent being responsible for permitting unlicensed activity on this work site. Mr. Schweiger testified that this is currently under investigation by the Registrar’s office in a separate action (UF99-0189). Without finding that there was no unlicensed activity permitted by Respondent, it is found that there was insufficient evidence of such produced at this hearing.

8. Following the excavation work of Respondent and his construction, there was excessive settling of the house, evidencing improper soil compaction (Also evidence of the improper soil compaction was a large sinkhole forming on the lot). Respondent should be responsible for determining the cause of the excessive settling, and correcting same by appropriate means.

9. Respondent deviated from the plans and specifications by failing to install proper footings, and failed to install rebar as called for by the plans. Respondent should be responsible for correcting all his work on the footings, including the installation of proper rebar, as called for by the plans.

10. Due to the excessive settling several cracks appeared in the concrete garage floor slab, and the stem walls, and the area of the footing in front of the garage. Many of these cracks are beyond acceptable tolerances. Respondent took corrective action on some, but not all, of the cracks. Respondent should be responsible for correcting all cracks in these construction areas to within acceptable industry standards.

11. Respondent also failed to install the sewer lines per plans and specifications, and local codes. The line was installed above grade, and in places was just laying on the ground. Respondent should be responsible for correcting the sewer line installations per plans, specifications and all applicable codes.

12. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.

2. The Respondent herein is charged in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 10. and 23., namely A.A.C. R4-9-108 (Poor Workmanship).

3. The facts of record support the conclusion that Respondent violated A.R.S. §32-1154.A.23., namely rule 4-9-108, as set forth in the Citation and Complaint.

Recommended Order

Wherefore, it is hereby recommended that the Respondent’s Class B License Number 118636 be suspended until such time as he has completed the corrective work enumerated hereinabove at paragraphs ##8 through 11, per all plans and specifications and codes, and pursuant to the parties’ contract, all within minimum workmanship and industry standards, and to the satisfaction of the agency. It is further ordered that if, on or before the corrective date of this Order, the Respondent has completed the corrective measures referenced above to the satisfaction of the agency, that no suspension take place, and Citation and Complaint Number F99-0188, together with the Complaint on which it is based, be closed.

Dated this 29th day of July, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of July, 1999, to:

Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by: -----------------------