ALJDEC

99F-M0513-ROC · Registrar of Contractors · 1999-06-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 1999

APPEARANCES: Hal McNeil, Qualifying Party, appeared on behalf of Complainant; Respondent was represented by its attorney Jerald Chesler.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This complaint concerns a leaky basement that was built under the direction of Hal McNeil/Mar Key Builders, LLC (both of whom are hereinafter referred to as “Complainant”) and waterproofed by Respondent National Roofing. This tribunal takes administrative notice of the Registrar’s Order in Rulon E. Anderson v. Mar Key Builders, LLC, Case No. M98-1396, Docket No. 98F-M1396-ROC (February 22, 1999), which was the homeowner’s complaint against Complainant about the leaky basement. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of dismissal. FINDINGS OF FACT 1. In April and May 1997, Rulon Anderson was building a house in Mesa, Arizona as an owner/builder. Anderson contracted with Complainant to excavate and build the foundation and a basement. Complainant subcontracted with Carson Construction, Inc. (hereinafter “Carson”) to do the concrete work and Respondent to do the waterproofing of the basement walls. The subcontract between Complainant and Respondent called for Respondent to install a two-coat waterproof membrane and protective pressboard. 2. There were no architectural plans and specifications for the house. There was, however, a set of drawings that the contractors were following. During the construction process, a deviation from the drawings was made by Complainant and Carson, the concrete subcontractor. The drawings called for a “monolithic pour,” which means that the footings and slab are poured as one unit. The walls would then be formed and poured separately, joining to the floor by means of a keyed joint--a keyway indentation near the edge of the slab into which a ridge on the bottom of the wall fits. (See, Exhibit B; also referred to as a “cold joint.”) To make it easier to form the walls, Complainant and Carson extended the slab by several inches so that the outside wall forms could rest on the slab edge. This created a small “shelf” around the basement at the base of the walls, right next to the joint where the walls meet the slab. It is possible that this shelf is channeling water into the joint. The drawings called for a “waterseal” at the keyed joint. The parties agreed that it is standard in the industry for the concrete subcontractor to seal the joint by laying a rubber seal inside the joint. The rubber is placed in the indentation and becomes a seal as the weight of the wall compresses it. 3. The evidence shows that it was reasonable for Respondent to assume that the concrete subcontractor had sealed the joint between the floor and walls. Respondent applied the waterproofing and pressboard as called for by the subcontract and drawings. During the backfill process, Anderson noticed that water being used to moisten and compact the soil was coming into the basement. Complainant assured Anderson that the walls would not leak under normal conditions and were leaking then only because water was being directly applied to the area. In February 1998, however, during heavy rainstorms, the basement continued to leak. Everyone agrees that the water was getting into the basement at the point where the walls meet the slab. 4. Anderson contacted Complainant, who told Anderson that he needed to re-grade and install gutters to get the rain away from the house. Anderson installed gutters but the leaking continued. Anderson filed a complaint against Complainant, No. M98-1396. In June 1998, ROC Inspector James T. Walsh issued a Corrective Work Order ordering Complainant to correct the leaking and repair the water damage. Complainant contacted Respondent. They agreed to share the repair: Complainant provided backhoe services and repaired the landscaping while Respondent applied additional waterproofing. They did this in July 1998; however, Complainant would not excavate all the way around the house, only in certain areas. Respondent requested that Complainant excavate all the way around the house so that Respondent could re-apply waterproofing to all areas, but Complainant refused. In the areas that Respondent could get to, Respondent applied waterproofing up the wall higher than before and applied extra waterproofing at the wall-slab joint. Complainant then had the landscaping redone. 5. The basement continued to leak and Anderson, frustrated by Complainant, began contacting Respondent directly. As a matter of good customer relations, and because Complainant was dragging his feet, Respondent went back to the Anderson house in October 1998 and applied further waterproofing to the areas that were not done before. This cost Respondent $2500.00 for excavating and backfilling. (Enclosure 14 to Respondent’s January 4, 1999, letter in answer to the Citation and Complaint.) 6. Respondent’s insurer performed an investigation and determined that the leak was at the wall-floor joint. (Exhibit D.) The insurer declined to find Respondent responsible. 7. In February 1999, the ROC, after an evidentiary hearing, found Complainant responsible to Anderson for the leaking and ordered remedial work. The decision left open the apportioning of responsibility for the leak between Complainant and its subcontractors. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has not met the burden. 2. The evidence does not show violation of A.R.S. § 32-1154(A)(1) or (7) as alleged in the Citation and Complaint. Respondent performed the work in a workmanlike manner the first time. Respondent had a reasonable belief that the joint had been sealed by the concrete subcontractor. Even so, Respondent went back to repair and was thwarted by the unwillingness of Complainant to repair every portion of all four walls. Complainant has not shown that Respondent abandoned the project or committed any wrongful act that harmed Complainant. 3. The complaint should be dismissed. RECOMMENDED ORDER Based on the above findings and conclusions, it is hereby recommended that the Citation and Complaint in Case No. 99-M0513 against National Roofing be dismissed.

Done this 11th day of June 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of June 1999, to:

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

By ___________________________ -----------------------

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