ALJDEC

99F-S0154-ROC · Registrar of Contractors · 1999-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|REVIVAL TIME CHRISTIAN CHURCH, |(|Case No.: S99-0154 | | |(| | |Complainant, |(|Docket No.: 99F-S0154-ROC | | |(| | |vs. |(| | | |(|Recommended | |License No. 101995, Class AE of |(|Decision and Order | |Jeffrey Charles Hughes, d.b.a. |(| | |EAGLE ASPHALT (INDIV), |(| | | |(| | |Respondent. |(| | | |(| | | |(| | | |(| |

HEARING: Monday, October 4th, 1999; 2:00 p.m. Appearances: The Complainant, Revival Time Christian Church, appeared through its Pastor, Mr. Willie R. Gordon. The Respondent, Eagle Asphalt, appeared through the owner and Qualifying Party, Mr. Jeffrey Charles Hughes. Administrative Law Judge: Grant Winston.

This matter was brought on for administrative hearing on October 4th, 1999. Testimony was heard and other evidence admitted to record and, based on the record taken as a whole, the following Findings of fact, Conclusions of Law, and Recommended Order are made.

FINDINGS OF FACT

1. The Respondent herein, Jeffrey Charles Hughes, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class AE License Number 101995.

2. The Complainant is a Christian Church in Sierra Vista, Arizona. Its pastor is Mr. Willie R. Gordon.

3. Complainant and Respondent entered into a written contract on or about October 6th, 1998, whereby Respondent was to complete a chip and seal job on the Complainant’s parking lot.

4. Work on the contract progressed apace until around November of 1998. Respondent had hauled the ABC and prepped the site on November 6th, and the 9th through the 11th, 1998. Respondent had received a check from Complainant on November 6th, 1998, in the amount of $4,500.00, as a partial payment, in accordance with the terms of the contract. That check was returned dishonored by the payor bank for insufficient fund balance on November 13th, 1998. When Respondent was notified that Complainant’s check had bounced, Respondent pulled off the job at once. (There is no evidence to suggest that Respondent took any steps to afford the Complainant an opportunity to make the check good.)

5. Respondent did nothing further toward performance of the contract until February 10th, 1999, which was not until after Complainant had given payment toward the contract in the form of two checks; one received November 20th, 1998, in the amount of $4,920.00, and a second received January 27th, 1999, in the amount of $4,700.00.

6. Respondent returned to the job site on February 10th, 1999, for the first time since pulling off the job the previous November, a period of three months. When Respondent pulled off the job, the Respondent had cut the grade and put in the ABC; in short, the job was to the point of being ready for the chip and seal to be applied.

7. When Respondent recommenced work on the site, it merely picked up the job at the point where it had left off three months earlier. Respondent did not go back and re-prep the parking lot area; it simply began application of the chip and seal, after having left the site exposed to wind, weather, and traffic for three months.

8. The chip and seal job was completed in five days: February 15th, 16th, and 27th, and March 4th, and 9th, 1999. Parking lot striping was performed around the end of March, and clean-up of the job site around April 5th, 1999.

9. Complainant began to see weeds growing up through the chip and seal in May of 1999. These were not just a few weeds, but they were innumerable as the photographic evidence bears out Complainant’s testimony. In addition to the weeds, there appeared some anthills poking through the chip and seal.

10. An impasse between the parties was reached when Respondent demanded the balance due on the contract and Complainant refused due to the condition of the parking lot. Both parties began to take actions to compel the other to perform, including Complainant’s filing of this complaint with the Registrar on June 14th, 1999.

11. As a result of the complaint, the Registrar’s Inspector, Mr. Mike Nieves, on June 15th, 1999, sent a letter to the parties. The primary purpose of the letter was to inform the parties of a scheduled job- site inspection by Mr. Nieves. Also in that letter, Mr. Nieves informed the Respondent: “CONTRACTOR: All items listed [in Complainant’s complaint] which are your responsibility should be corrected prior to the inspection.”

12. As Respondent’s testimony clearly proves, Respondent took this to mean the weeds in the parking lot. Respondent began a routine of going on to the job site and spraying an herbicide on the weeds. Respondent sprayed the weeds on numerous occasions beginning late June, and continuing until at least September 9th, 1999. (There is conflicting evidence as to the question of September 9th being the last time Respondent sprayed.) Based on Respondent’s testimony that it performed the weed killing as a result of Mr. Nieves’ instruction that it should correct all items on the complaint which are its responsibility, Respondent apparently considered itself responsible for the presence of the weeds.

13. Pursuant to the complaint, Mr. Nieves, did conduct a job site inspection on July 1st, 1999. He issued what the Registrar denominates a “RC-C-007” letter on July 1st, 1999, in which he concluded that “The asphalt meets Minimum Workmanship Standards.” By asphalt Mr. Nieves meant the chip and seal portion of the job. In his testimony Mr. Nieves stated that what he used as the criterion or measure of minimum workmanship standards was the parties’ contract. He looked to the contract terms and then to the job site to determine if the Respondent had performed under the contract. On the job site Mr. Nieves dug two small holes through the depth of the chip and seal. He satisfied himself that the chip and seal itself was applied according to the contract, with proper sandwiching of oil then gravel, then more oil, then more gravel. In concluding that the “asphalt” met minimum workmanship standards, Mr. Nieves did not consider any of the Respondent’s work beyond his observation of the chip seal holes at the job site.

14. Mr. Nieves also testified that he conducted a second job site inspection on September 23rd, 1999, during which he observed considerably more weeds than he had seen on his first visit, July 1st, 1999.

15. At the administrative hearing the Respondent owner and qualifying party, Mr. Jeffrey Charles Hughes, clearly testified that when he does a chip and seal job such as the one Respondent performed on Complainant’s parking lot, and does it correctly, weeds normally do not begin to appear for two to three years later. He rendered his own opinion that the weeds growing through the chip and seal he placed on Complainant’s parking lot within two months after he finished the job were there as a result of what occurred during the three-month period between the time Respondent pulled off the job and the time Respondent returned and completed the job. According to Respondent’s testimony, Respondent routinely applies the chip and seal within seventy-two hours of the job site being prepped, including placing and compacting of the ABC. During that time period, according to Respondent, and as here found, the sub-surface over which Respondent would later apply the chip and seal, had become contaminated, including contamination with weed seeds. Mr. Hughes believes that during this three month period, dump trucks on site (not of the Respondent) were hauling dirt over the surface which could have contaminated the surface. Complainant doubts this. However, whether or not dump trucks traveling over the prepped surface brought contamination in the form of weeds, it is clear that during the three months Respondent had pulled off the job, the surface was contaminated by at least other forces such as wind, rain, and incidental traffic besides dump trucks. The evidence, including Respondent’s, amply supports the finding that this exposure of the prepped surface for three months was the cause of the weeds later growing through the chip and seal. The evidence also shows that had Respondent applied the chip and seal within seventy-two hours of the site prep, there would not have been the weed problem which gave rise to Complainant’s complaint. These are factors that Mr. Nieves did not consider.

16. It therefore appears from the evidence that Respondent’s performance of this contract was poor workmanship.

17. Respondent had other remedies, both under the contract and elsewhere at law, for bad checks issued by Complainant, and the evidence shows that Respondent was pursuing these remedial avenues, including placing liens on Complainant’s property, and having the pastor prosecuted criminally. (Complainant’s pastor’s uncontradicted testimony was that he had been forced to spend a night in the local jail for Respondent’s efforts to collect on the contract.) The evidence also shows that Respondent’s efforts in these regards were proving effective, as Complainant, by the time of hearing had made payment toward the contract price term of $13,769.26, in the approximate amount of $10,000.00.

18. What Respondent could not do without falling below workmanship standards for this job was to: a.) walk off the job for three months, and then, b.) when returned to the job, apply the chip and seal to the surface that had been exposed to contamination for three months without re-prepping the surface. Respondent returned to the job three months later and basically resumed at the construction stage it was three months previous. Respondent’s own testimony would indicate that good workmanship standards call for the application of the chip and seal over a prepped surface within seventy-two hours, in order to minimize the chance for contamination.

19. Respondent’s testimony included his opinion that the number of weeds would decrease in the next year and two years. He indicated a willingness to spray the weeds in the future. However, this testimony is not credible. It seems evident that this weed problem, if not corrected by means more significant than spraying herbicide, will persist.

20. 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 with possible violation of A.R.S. §32- 1154.A.3., namely A.A.C. R4-9-108, Poor Workmanship.

3. A.A.C. R4-9-108.A. demands that “All work shall be performed in a professional and workmanlike manner.” (Emphases added.)

4. The evidence clearly showed that Respondent’s performance under this contract was neither professional nor workmanlike. It was unprofessional for Respondent to simply pull off the job for three months immediately upon receipt of a bad check, not to return for three months.

5. It was both unprofessional and unworkmanlike for Respondent, once Respondent did return to the job, not to re-prep the contaminated surface, but instead to simply resume at the point where it had left off three months before.

6. Respondent did violate A.R.S. §32-1154.A.3., namely A.A.C. R4-9-108, as set forth in the instant Citation and Complaint.

Recommended Order

Wherefore, it is hereby recommended that Respondent’s Class AE License Number 101995 be temporarily suspended until the Registrar of Contractors receives proof that the Respondent has removed and replaced the chip and seal job on Complainant’s property, from the beginning point of site prep through the final clean-up, in accordance with the parties’ contract, and in accordance with all workmanship and industry standards.

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 suspension shall not take place and Citation and Complaint number S99-0154, together with the complaint on which it is based, shall be closed.

Dated this 22nd day of October, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of October, 1999, to:

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

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