ALJDEC

99F-M1365-ROC · Registrar of Contractors · 2000-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2000. APPEARANCES: Steve Ripley, Complainant’s representative; Larry and Kris Green, Complainant’s witnesses; Kent McMillan, Respondent’s representative; Van Bagley, Registrar of Contractors Inspector; and Dennis Cook, Registrar of Contractors Inspector (observing only). ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________

Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors. FINDINGS OF FACT 1. On July 19, 1998, Respondent contracted with Complainant to install Flo-crete pool decking (a concrete mixture made to look like flagstone) at the home of some clients of Complainant. After it was installed, the clients experienced some dents in the Flo-crete from their patio table and chairs due to softness of the material. Respondent received a repair order from Complainant on March 23, 1999. He visited the site to assess the damage on March 25, 1999 and repaired the dents by replacing that “flagstone” segment on April 1, 1999. 2. The next time Respondent was contacted regarding this client by Complainant was when he received the Complaint which was filed by Steve Ripley with the Registrar of Contractors on May 12, 1999. It might be noted that Mr. Ripley has filed 25 or 26 Complaints against Respondent following a lawsuit by Respondent to receive payment on work he has done for Complainant. Of those complaints, the records of the registrar indicate that only 4 have been confirmed as requiring corrective action by the Registrar of Contractors Inspectors. The Complaint in this instance stated that Respondent was “not responding to warranty requests on deck topping”. However, Complainant submitted no evidence at hearing that he had made any warranty requests prior to filing his Complaint. (Respondent testified to one repair order on an earlier date to which he quickly responded.) 3. On July 22, 1999, Registrar of Contractors Inspector Van Bagley conducted a job site inspection. He found that the Flo-crete was soft and the coating in the grout joints peeling. On August 4, 1999, Mr. Bagley issued a Corrective Work Order ordering Respondent to repair the grout joints and resolve the issue of the flagstone material remaining soft. 4. On August 10, 1999, Respondent met with Mr. Green who disagreed with Respondent’s intentions on completing the repairs and wished instead for the job to be completely redone. On August 11, 1999, Respondent wrote to Mr. Bagley stating that this was the fourth time his company had been to the homeowners’ residence and would not allow them to do the necessary work. He requested that the Complaint be dismissed due to non-cooperation by the homeowners. On August 24, 1999, Respondent wrote a letter to Mr. and Mrs. Green stating that the work that would be completed that day would be a pressure/acid wash on the entire deck, resealing of the deck and regrouting of the deck. Respondent’s crew did go to the home to effect repairs. The parties dispute whether the repairs were successful. 5. On January 10, 2000, Mr. Bagley conducted a pre-hearing inspection of the job site. In order to test the consistency of the flagstone material, he pushed his key into it. He found that the material was hard. He also inspected the grout touch-ups. He found that some of the regrouting was bubbling and needed some fixing. He also found a slight color variation in the regrouting which he thought needed to be touched up. Mr. McMillan stated at the inspection that he would have fixed the bubbles had he known they were there. Though Mr. and Mrs. Green complained that the patio furniture had made pock marks again, Mr. Bagley did not see them at the pre-hearing inspection and had not ordered that they be resolved in the Corrective Work Order. However, it is not disputed that the pock marks do exist. Mr. Bagley also noted some color variation in the new grout and recommended that the old grout be painted over more completely with the new color. 6. Mrs. Green testified at hearing that she was present when Respondent’s crew arrived to correct the problems on the deck. For some reason which she did not explain, she was upset that Mr. McMillan was not personally in attendance to make the repairs himself. She testified that the crew powerwashed the deck and then used an acid wash on it. She stated that they regrouted the problem areas. She introduced pictures to show that the new grout did not match the old grout and that one area of grout fell outside the groove and up onto the flagstone material. She stated that she felt that the material used for her deck was inferior and should have been replaced. She also stated that she knew other people with this type of deck and, while she could not visibly see any difference between their decks and hers, she did not think they had the same problems with the softness of the material. She expressed concern that the material would become soft again when the weather gets hot. She denied refusing access to the property to Respondent. She initially complained that her plants had not been adequately covered during repair and were damaged; however, at hearing she stated that she did not wish to pursue this issue. 7. Mr. Green testified similarly to Mrs. Green regarding the grout and softness of the material. Mr. Ripley testified that he has experience with Flo-crete and that it is not supposed to be soft. He denied having a vendetta against Mr. McMillan despite his 26 Complaints to the Registrar of Contractors against Mr. McMillan. 8. Mr. McMillan testified that he has made repairs to the deck when asked and remains willing to do so. He stated that he was not aware of the bubbling in the grout or the color variation in it until the pre-hearing inspection and intends to touch it up. He stated that softness of the Flo- crete is common and is always corrected using an acid wash and that sometimes more than one acid wash is necessary. He stated that softness seems to be more of a problem with the flagstone material than some of the other Flo-crete products but that it is not a defect in the material, it just needs another acid wash. He also stated that he was not aware of the pock marks in the patio and was not ordered to fix them in the Corrective Work Order but is still willing to fix them. He stated that the Flo-crete is supposed to soften a little when the weather reaches 110 degrees so that it can expand and shift with the concrete beneath it; however, it should not have gotten pock marks from the patio furniture. REASONING AND CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3), (23) and (7) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. The rule requires that a contractor’s work must meet minimum workmanship standards. In this case, it was established that the deck did not meet standards when the original grout peeled and the flagstone material became soft. However, Respondent attempted to make all repairs in a timely fashion and the only remaining problems are those of which the Respondent was not apprised until the day before the hearing. Also, though the pock marks had been mentioned at the first inspection, it is not clear whether the current marks had been brought to Respondent’s attention, they were not on the Corrective Work Order and had not been mentioned since then. Respondent is responsible for meeting minimum workmanship standards. However, there is insufficient evidence to show that Respondent had notice of the deficiency, and he was not given the opportunity to correct it. The Registrar of Contractors should also take into consideration Respondent’s history of making repairs quickly, his willingness to continue making repairs, and the questionable motives of Complainant which may have interfered with Respondent’s ability to communicate with the homeowners, gain access to the site and receive information as to whether the repairs had been made properly. Complainant has not established a violation of A.R.S. §32-1154(A)(3). 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. Complainant has not identified any substantial injury in this case. 5. The Arizona Revised Statutes at § 32-1154(A)(23) prohibits “(f)ailure to take appropriate 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”. Here, Respondent acted promptly to make all repairs requested of him. Complainant’s allegation that Respondent had failed to make or keep appointments was not substantiated by any believable evidence. In light of the fact that Complainant has filed 26 Complaints against Respondent and clearly intends to keep him busy with several problems, Complainant’s allegations do not seem credible. It is more likely that Complainant was the cause of any miscommunications that may have occurred between Respondent and the homeowners. Regardless of any possible interference with communication, Respondent did make a good faith attempt to correct his work as instructed on the Corrective Work Order. While the repairs effected were not in total compliance with the Corrective Work Order, they were in substantial compliance and considering the totality of the circumstances, no civil penalty should be imposed for the remaining items of the bubbling of the grout, the grout color variation and the grout lippage. The pock marks were not included in the Corrective Work Order and therefore cannot be the subject of a violation of this provision. Further, Complainant’s 26 Complaints against Respondent and his apparent attempts to discredit and embarrass Respondent for reasons which cannot be established by the evidence to relate to the quality of workmanship should provide a valid justification for any delay in completing the repairs. 6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 7. In this case, Complainant has failed to establish by the weight of the believable evidence that Respondent did a wrongful or fraudulent act causing substantial harm to anyone. Further, though Respondent would still be accountable for the pock marks under the patio furniture as the work is still less that two years old, given the totality of the circumstances, the lack of notification by Complainant, and Respondent’s good faith attempts to comply, Respondent should not be subjected to civil penalties in the matter. Though Complainant should complete repairs to the grout, he should be found to have a valid justification for not completing the repair sooner and no penalties should issue. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors find no violations by Respondent and that the entire Citation and Complaint in case number 99F-M1365-ROC be dismissed as unsubstantiated. Done this day, January 25, 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors 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