ALJDEC

00F-0264-ROC · Registrar of Contractors · 2001-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2001. APPEARANCES: Jeff Hart and Terri Holt-Hart appeared on their own behalf. Respondent was represented by Marvin A. Denson. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ Complainants have alleged that Respondent violated of A.R.S. §32- 1154(A)(3)(failing to comport with the rules promulgated by the Registrar, namely, failing to perform in a workmanlike manner in violation of A.A.C. R9-4-108), A.R.S. §32-1154(A)(7)(committing a wrongful or fraudulent act which results in substantial injury to another person), and A.R.S. §32- 1154(A)(23) (failure to comport with a corrective work order issued by the registrar). Complainants have proven by a preponderance of the evidence that Respondent violated these provisions as more fully set out in the following findings of fact and conclusion of law. FINDINGS OF FACT 1. Respondent is a properly licensed Arizona Contractor. Respondent completed the stucco work on the Complainant’s home. 2. Complainants took possession of the home in April, 1998. After moving in, the Complainants began to notice that the house was experiencing excessive cracking in the stucco both on the walls of the home and in the masonry block fences that surrounded the pool of the home. In addition, the stucco on the walls of the home was “telegraphing” the position of the wall studs. The stucco on the walls of the fences was “telegraphing” the masonry joints between the blocks. 3. Respondent attempted to repair the affected areas more than one time. The repairs, however, were not effective. Indeed, the repairs themselves were not completed in a workmanlike manner. The cracks would continually reappear through the affected areas. Furthermore, the painting of the repairs was problematic. As the pictures introduced into evidence show, the painting has resulted in an unsightly paint scheme. The home’s paint is streaked in such a manner that does not comport with the minimum standards set forth by A.C.C. R4-9-108. 4. The parties differ as to the cause of the continual cracking and the problem with the paint scheme created by the repainting of the affected areas. The undersigned finds that the problems came as a result of poor workmanship, and adopts the causation as espoused by both the Registrar’s inspector and the Complainants. 5. As result of the problems with the stucco, Complainants filed two separate complaints with the Registrar against Respondent. The first was filed in 1999. As a result of the first complaint, a corrective work order was issued by Registrar Inspector Phil Coscia on September 17, 1999. The order directed Respondent to correct the problem with the studs telegraphing through the stucco on the east side of the house. The order further directed Respondent to correct the problem of the masonry joints telegraphing through the stucco on the pool equipment corral fence. 6. Although efforts were made to correct the problem, the efforts were not fruitful. As of the time of the prehearing inspection conducted just days before this hearing, the problems of the studs and masonry joints telegraphing through the stucco continue to exist. 7. A subsequent corrective work order regarding additional problems with the stucco was issued by Registrar’s Inspector Joe Cotten on August 4, 2000. In this corrective work order, Inspector Cotten (1) directed Respondent to correct the stucco that had fallen away on the northwest corner of the home at the site of an earlier stucco repair, (2) directed Respondent to correct cracks that had appeared at sites that Respondent had previously repaired, and (3) to correct the poor painting over the earlier stucco repairs. 8. As of the time of the prehearing inspection conducted just days before this hearing, the problems ordered to be repaired in the October 4, 2000 corrective work order have not been repaired. 9. At the hearing in this matter, Inspector Cotten testified regarding the problems in the stucco. Inspector Cotten testified that the problems with the stucco which were outlined in the corrective work orders demonstrated workmanship that did not comport with the workmanship standards promulgated by the Registrar. Based on the photos admitted in evidence, which clearly show the poor painting, telegraphing of studs and masonry joints, as well as Inspector Cotten’s testimony, the undersigned finds that Respondent has violated A.R.S. §32-1154(A)(3). In addition, because the problems continue to exist as of the time of the hearing, the undersigned finds that Respondent has violated A.R.S. §32-1154(A)(23). 10. The undersigned has considered Respondent’s two year complaint history in arriving at the recommended decision in this case. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (3). Violation of any rule adopted by the registrar. * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (23). Failure 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 a written directive from the registrar.

A.A.C. R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 3. The evidence as demonstrated in Findings of Fact Paragraphs 2,3,4, 6 and 9 above establishes that Respondent violated A.R.S. §32- 1154(A)(3) by failing to comply with the administrative requirement that work be performed in a workmanlike manner. 4. The evidence also establishes that Respondent engaged in a wrongful act as required by A.R.S. §32-1154(A)(7). Respondent’s poor workmanship in the initial application of the stucco and subsequent poor workmanship in repair efforts constitutes wrongful conduct within the meaning of this statute. This conduct has resulted in substantial injury to Complainants. 5. The evidence further establishes that Respondent violated A.R.S. § 32-1154(A)(23) by both failing to comply with the corrective orders issued by the Registrar as set out in Paragraphs 5, 6, 7, 8, and 9. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class B license shall be suspended on the effective date of the Order entered in this matter. It is further recommended that if Respondent submits written proof to the Director that appropriate and effective remedial work on the stucco, stucco repairs, and paint have been made on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place. Done this day, June 6, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors Michael P. Goldwater 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