ALJDEC

99F-P0228-ROC-COM · Registrar of Contractors · 2000-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: This matter came on for hearing on January 27, 2000 and October 23, 2000. APPEARANCES: The Complainant appeared through his attorney, Harold Stephenson. The Respondent appeared through his attorney, Joel Sannes, on January 27, 2000, and appeared on his own behalf on October 23, 2000. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class B License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a residence constructed by the Respondent. 3. After taking possession of the residence, the Complainant began to notice concrete cracks in the foundation of the residence. The concrete cracking became more severe and the Complainant filed a formal complaint, against the Respondent, with the Registrar of Contractors. 4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence. 5. The Respondent did not comply with the terms and conditions of the written corrective work order. However, the Respondent did offer to install floor tile on the bathroom floor. The Complainant declined the Respondent’s offer and requested a formal hearing. 6. The Complainant’s residence displays severe and unacceptable cracks in the concrete slab and drywall cracks in the interior walls. 7. There has been no corrective action performed on the residence and the cracks continue to increase in severity. 8. There have been two separate engineering reports on the residence. The Western Technologies Inc. report states, in part, as follows: “Based upon our observations and the attached information, it is our opinion that the cracks are the result of foundation and concrete slab movement. Both forms of distress appear to have been triggered by volume change of the bearing soils due to moisture infiltration. Based on our review and the available information, it is our opinion that remedial repairs should consist of underpinning of the footing elements and grinding and sealing of the concrete slab cracks.” 9. The AGRA Earth and Environmental report provides, in part, as follows: “Based on the documents reviewed, the conditions observed during the site visit, and the limited laboratory test results, it is the opinion of the undersigned that the cause of most of the significant distress observed can be related to runoff impacting the moderately expansive soils supporting the foundations and slabs of the house.” 10. The AGRA Earth and Environmental report recommends the following corrective action: ”It is recommended that positive drainage and/or runoff barrier be provided to intercept water at the north side of the house and positively convey this water to the drainage ditch located along 9th Avenue. The drainage features should be designed to not let water pond adjacent to the north side of the house, or adjacent to either the east or west sides of the house. It is also recommended that rain gutters be provided, and that the gutters extend to non-erosive devices that also convey the roof drainage away from the house to the drainage ditch located along 9th Avenue. The existing cracks should then be repaired. It is recommended that crack monitoring devices be installed, at a minimum, at the locations of the floor slab and drywall cracks specifically discussed above….” 11. The assigned agency inspector testified that he based his corrective work order on applicable industry standards and the Minimum Workmanship Standards for Licensed Contractors guide for contractors, which provides, in part, as follows “Soil conditions are known or should be known to the contractor prior to construction. The technology is available and a state of the art exists to avoid problems from expansive soil.” 12. Credible evidence, produced at hearing, established that the Complainant has not altered the drainage condition or the soil condition of the residence. 13. The Complainant testified, and submitted bids, that he does not feel that the house can be corrected to his satisfaction and that he wants the residence torn down and replaced. 14. However, both of the engineering reports indicate that suggested corrective action can stabilize the moisture in the soil and that the concrete and drywall cracks can then be properly corrected. 15. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. 16. Respondent shall, utilizing a structural engineer’s report, perform whatever corrective action is deemed necessary (by the structural engineer) to properly stabilize the soil condition and to properly eliminate future water saturation of the soil. The Respondent shall then properly correct all concrete and drywall cracks in the residence as directed by the structural engineer. 17. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class B License shall be revoked unless the Registrar of Contractors receives proof that the Respondent has properly caused the soil conditions to be stabilized and future water saturation to be eliminated and caused all settlement cracks in the concrete and drywall in the residence to be properly corrected as set forth above in Finding of Fact No. 16. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and Citation No. P99-0228 shall be closed. Done this day, November 8, 2000.

________________________________ M. Douglas Administrative Law Judge

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

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488