ALJDEC

99F-M0123-ROC · Registrar of Contractors · 1999-03-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 1999. APPEARANCES: COMPLAINANTS: Donald and Shirley Ehler, on their own behalf; RESPONDENT: James Aston, vice-president and authorized representative.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________

This matter proceeded to hearing on March 18, 1999, to determine whether Respondent violated state law as alleged by Complainants and as cited by the Registrar of Contractors (Registrar). Based on the evidence presented at that time, as well as 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 Director of the Registrar of Contractors: FINDINGS OF FACT

1. In January, 1998, Appellants Donald and Shirley Ehler (Ehler) contracted with Respondent Westmark Homes/SRA Development Corp., License No. 093761, Class B, (SRA) for the construction of their residence at 2189 East Ranch Court, in Gilbert, Arizona. Their move-in date was on or about March 27, 1998. 2. On July 27, 1998, the Ehler’s filed a complaint against Respondent with the Registrar of Contractors, alleging three items in need of repair/completion: Missing edging between the ceiling drywall and patio cover; sloping patio concrete decking contrary to workmanship standards; and, warped and gapped garage door molding, also contrary to workmanship standards. Subsequently, the Ehlers alleged workmanship defects in the driveway concrete, which were addressed as a fourth item in the course of the Registrar’s jobsite inspection and Corrective Work Order (CWO) 3. As a result of the complaint, as amended with the fourth item, the Registrar’s inspector Ron Lamp conducted a jobsite inspection on September 14, 1998, and based on his findings at that time, he then issued his CWO on September 16, 1998:

CONTRACTOR TO TAKE ANY NECESSARY ACTION TO:

1. PROPERLY COMPLETE REPAIRS TO PATIO ROOF EDGE. 2. PROPERLY REPAIR PATIO CONCRETE. 3. PROPERLY CAULK AND PAINT GARAGE DOOR TRIM WHERE NECESSARY. 4. PROPERLY REPAIR DRIVEWAY DISPLACEMENT ANDF CRACKS.

4. When the complaint was not administratively resolved, the Registrar issued Case No. M99-0123 CITATION AND COMPLAINT on November 3, 1998, alleging possible violations of A.R.S. §§ 32-1154.A. .3, .7, .15, and .23, and A.A.C. R4-9-108, the workmanship rule. 5. Respondent’s timely answer was filed with the Registrar on November 13, 1998, and hearing was therefore duly noticed. 6. At hearing, Mr. and Mrs. Ehler appeared and testified, and presented the testimony of Inspector Lamp (Lamp), who described his findings on both the initial jobsite inspection on September 14, 1998, and his subsequent pre-hearing jobsite inspection on March 17, 1999. The Ehler’s also offered Exhibits 1- 7, consisting of a diagram and multiple photographs, all of which were marked and admitted, without objection. 7. James Aston (Aston) appeared and testified as Respondent’s vice- president and authorized representative, and offered Exhibits A and B, consisting of two photographs, both of which were marked and admitted, without objection. 8. In his testimony, Donald Ehler confirmed and clarified that Respondent had satisfactorily addressed Items 1 and 3 of the complaint, but that Items 2 (the workmanship of the patio concrete) and 4 (the workmanship of the driveway concrete) remained unacceptable. 9. He asserted that an epoxy repair (by the Respondent’s cement contractor) to the Item 2 patio concrete was already cracking, although it had been guaranteed for 10 years, with photographic Exhibit 1 demonstrating the deterioration of the repair, although it had been done less than a year ago. 10. With regard to the Item 2 patio concrete, James Aston conceded that he had not had the opportunity to view the particular defect alleged, but confirmed that if the Registrar’s inspector found that workmanship standards were not met, then Respondent would direct its cement sub- contractor to correct the deficiency. 11. Inspector Lamp’s testimony with reference to the Item 2 patio concrete repair was corroborative of Ehler’s allegation: the inspector opined that the initial epoxy repair did not meet acceptable standards (although the underlying concrete appeared quite solid), such that further corrective action was necessary, which he stated could again consist of an epoxy repair, which when done to standard would last a long time. 12. It is therefore found to be substantially uncontroverted that further corrective action is necessary to provide a workmanlike repair of the specific defective portion of the Item 2 patio concrete. 13. Relative to the Item 4 driveway concrete, Ehler explained, by means of his hand-drawn diagram of his driveway, with photographs appended (Exhibit 2), that the driveway consisted of nine sections of concrete, which he had numbered for illustrative purposes as 1 - 9, from upper left to lower right, with 1 -3 adjoining the house; 4 - 6 in the middle; and 7 - closest to the edge of the property. 14. Ehler described two types of defects he believed were beyond acceptable workmanship standards and therefore required corrective action: the first type consisted of several cracks (indicated in Exhibits 2, 4, 5, 6, and 7) with one running (primarily in a “vertical” direction, according to the convention of the diagram) for about 50 inches across section 1 and continuing into and clear across the 96” inches of section 4; with a second crack of about 56 inches (primarily vertical) also in section 4; and then a third crack (primarily “horizontal”) of about 26 inches through section 5, continuing clear across the 98 inches of section 6. 15. He described the second defect (indicated in Exhibits 2 and 3) as an unevenness, or heaving, of up to 1 ½ inches between sections 4/7, 5/8, and 6/9, despite the fact that sections 7 - 9 had already been repoured once. 16. Aston testified that based on his recent observation of the Item driveway cracks, and his Exhibits A and B, he did not believe the cracks exceeded the 3/32 inch allowed. 17. With regard to the Item 4 driveway unevenness, he noted that even after the repour, three of the driveway sections (7 - 9, per Ehler’s diagram) appeared to be heaved by ½ inch or so from their adjoining sections, a problem he thought was occurring due to the expansive soil underneath. While admitting that he was not a cement contractor, he thought one solution would be to cut out subsections about 2 feet wide from the affected sections 7, 8, and 9, and then repour, although he conceded that such a solution might be less satisfying aesthetically. 18. Inspector Lamp opined that the Item 4 driveway crack in section 4 exceeded the width allowable, and required replacement rather than simple repair, while the cracks in sections 1, 5, and 6 could be corrected by repairing with epoxy, rather than replacing. His conclusions about the driveway cracks and their respective need for corrective action are found to be well-supported by the evidence of record. 19. The inspector also confirmed the significant extent of the heaving evident, relative to Item 4, between sections 4/7, 5/8, and 6/9, despite that sections 7 - 9 had already been repoured once for the same problem. Given that history, he stated that an appropriate remedy would be to “dowel” those adjoining sections together, which would involve removing sections 7, 8, and 9, then drilling into sections 4, 5, and 6 to place steel rebar “dowels” over which a new pour would be made of sections 7 through 9, with the end result that 4 and 7, 5 and 8, and 6 and 9 could no longer heave independent of the section to which it was doweled. Lamp thought that this remedy would be functionally longer-lasting and aesthetically less problematic than the “two-foot wide” replacement subsections proposed by Aston. The inspector’s conclusions about the heaving problem and an appropriate means of corrective are found by the undersigned to be well-considered in light of the overall evidence of record. 20. Mr. Ehler provided further testimony to note that by the terms of the September 16, 1998 Corrective Work Order, Respondent was directed to take appropriate action within fifteen days. By his calculation, that meant the deadline was October 1, 1998, which he stated had passed without any action by Respondent, with Items 1 and 3 not completed until October 7, and Item 2 not completed (and even then, not to standard) until October 19, 1998. (He also confirmed that Item 4 driveway sections 7 - 9 had been repoured in late June, 1998, to correct heaving evident then, but with new heaving evident in short order). 21. Reference to the Registrar of Contractors’s public records, maintained by means of a computerized database, demonstrate that License No. 093761, Class B is held by SRA Development Corp., with no dba or other reference made to “Westmark Homes”, the name listed by the Complainants in their complaint, and confirmed by Aston in his testimony. No other probative evidence of significance was adduced on this issue. // // // // //

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 any of 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. …

15. Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license. …

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, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one or more 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. Complainants fail 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), Complainants have sustained their 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 (1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). Complainant has demonstrated by a preponderance of the evidence Respondent’s wrongful conduct and unworkmanlike efforts with regard to the patio concrete and the driveway cracks and heaving, as specifically found above, requiring appropriate corrective action. 4. With regard to the allegation that Respondent failed to take appropriate corrective action (A.R.S. § 32-1154.A.23), Complainants have demonstrated, through Ehler’s testimony and their letter of October 2, 1998, that the corrective action taken by Respondent’s sub-contractor(s) was not accomplished within 15 days of the CWO. However, the controlling statutory section holds that a failure to take corrective action would be a violation only if not without valid justification and not within a reasonable period of time. In this instance, and upon consideration of the record as a whole, the undersigned finds and concludes that the evidence does not support the violation charged. 5. Finally, with regard to 32-1154.A.15, the evidence is limited, since the inspector was not asked why he pencil-cited a possible citation of this statutory subsection, and administrative notice of his notes provides no further explanation. The only evidence apropos to this issue, other than the complaint itself, was the testimony of James Aston, who noted that the license-holder, SRA Development Corp., was dba as Westmark Construction. The undersigned concludes that the evidence is insufficient to sustain this charged violation, although Respondent’s attention to eliminating any further confusion in this regard would obviously be advisable.

RECOMMENDED DECISION

On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order (thirty-five days after issuance), Respondent’s Class B license be suspended until the Registrar receives proof that Respondent has accomplished appropriate and effective corrective action to remedy defective workmanship. In the alternative, IT IS FURTHER RECOMMENDED that, if Respondent accomplishes the appropriate remedial action on or before the effective date of the Registrar’s Order, then no license suspension shall be imposed, and the entire CITATION AND COMPLAINT in Case No. M99-0123 shall be closed.

Done this day, April 5, 1999.

______________________________________ Anthony Halas Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________

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