ALJDEC

99F-S0156-ROC · Registrar of Contractors · 1999-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|LESLIE NEAL GALT, |§|CASE NO.: S99-0156 | | |§| | |Complainant, |§|DOCKET NO.: 99F-S0156-ROC | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 092532, Class B- of |§|DECISION AND ORDER | |Ralph Eugene Kamrowski d.b.a. |§| | |KAMROWSI CONSTRUCTION (CORP), |§| | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| |

HEARING: December 7, 1999, at 8:30 a.m. APPEARANCES: The Complainant appeared on his attorney, Stuart Fauver. The Respondent appeared through his attorney, Michael Farro. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on December 7, 1999. The Complainant appeared through his attorney, Stuart Fauver, and the Respondent appeared through his attorney, Michael Farro. 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 Respondent constructed a new residence for the Complainant. Shortly after moving into the new residence, the Complainant began to notice cracking in the interior drywall and exterior stucco and problems with the doors and windows throughout the residence.

3. The Complainant notified the Respondent of the problems and the Respondent returned to the residence and performed repeated repairs of the cosmetic problems. The repairs always failed and the Complainant filed a claim with the Respondent’s insurance company.

4. Finally, the Respondent’s insurance company had an engineering company perform a geotechnical analysis of the Complainant’s property. The evaluation included the engineer’s recommendations for correcting the underlying problems with the Complainant’s residence.

5. The Respondent then asserted that the engineering report documented a soil problem with the Complainant’s property and declined to perform any more repairs on the residence until, or unless, the Complainant properly corrected the underlying soil condition that was causing the repeated problems with cracking, heaving, unlevel and out of square doors and windows.

6. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work despite repeated requests that it do so. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

7. 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.

8. The corrective work order required the Respondent to perform corrective action on the following areas:

i) The drywall cracking throughout the residence. j) The out of plumb doors throughout the residence. k) The out of plumb cabinets. l) The settling concrete floors. m) The exterior stucco cracks. n) The cracks in the exterior block walls. o) The warped header beam on the rear porch.

16. The Respondent declined to comply with the terms and conditions of the corrective work order on the basis that the problems were all caused by the underlying soils condition that was causing the damage to the residence.

17. There was no dispute that the Respondent constructed the residence.

18. There was no dispute that the Complainant purchased the four acre parcel in the development where the residence was constructed approximately two months before the construction of the residence.

19. There was no dispute that neither party asked for, or conducted, any kind of soil or compaction testing prior to the construction of the new residence.

20. The was no dispute that the Respondent, through its selected sub- contractor, was responsible for the proper preparation of the building site prior to the construction of the new residence.

21. There was no dispute that the building site was not compacted prior to the construction of the new residence because the Respondent and the Respondent’s selected subcontractor felt that any compaction of the site was unnecessary.

22. Credible evidence, presented at hearing, established that fill soils were placed during the leveling of the construction pad. These fill soils were shown to be approximately 1.2 feet below the adjacent ground surface and to consist of moist, very loose to loose, clayey fine to medium sand, with scattered gravel and cobble.

23. Several cores were cut through the concrete slab and core samples taken. The core samples establish that fill soil base material was approximately 1-foot deep under the concrete slab and that the base material consisted of dry to damp, loose, silty fine to medium gravel.

24. Credible evidence established that the Complainant did not alter the grades in the area around the residence.

25. Credible evidence established that the subsurface of the construction site was not properly compacted prior to the construction of the residence.

26. Credible evidence, presented at hearing, established that, in addition to the compaction problems, the subsurface has soil conditions which may have contributed to the problems caused by the Respondent’s failure to compact the subsurface prior to construction.

27. Credible evidence established that the Respondent should have been on notice as to the possibility of the soil conditions in the area where the residence was constructed.

28. The Respondent shall properly correct the problems with the residence caused by the heaving and settling in accordance with the licensed engineer’s report. Following the proper correction of the underlying compaction problems, the Respondent shall correct the problems caused by the heaving and settling as set forth in the assigned inspector’s corrective work order.

29. 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 suspended until the Registrar of Contractors receives proof that the Respondent has properly caused the proper correction of the Respondent’s residence as set forth above in Finding of Fact Nos. 8(a) through 8(g), inclusive, and 21.

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 No. S99-0156 shall be closed.

Dated this 14th day of December, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of December, 1999 to:

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

Transmitted by:

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