ALJDEC

00F-H0277-ROC · Registrar of Contractors · 2001-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|NATIONWIDE hOMES, iNC., |§|case No.: H00-0277 | |Complainant, |§| | | |§|DOCKET NO.: 00F-H0277-ROC | |-v- |§| | | |§| | |License No. 125704, Class C-36 of|§|RECOMMENDED | |CRIST PLASTERING, LLC (LLC), |§|DECISION AND ORDER | | |§| | |Respondent. |§| | | |§| |

HEARING: Tuesday, January 9th, 2001; 1:30 p.m. APPEARANCES: The complainant appeared and was represented by Mr. Craig Neubauer, Vice President. The respondent appeared and was represented by Mr. Mitchell L. Crist, owner. ADMINISTRATIVE LAW JUDGE: Grant Winston.

This matter came on for hearing in the Office of Administrative Hearings, at Kingman, Arizona. 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, Crist Plastering, LLC, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-36 License number 125704. 2. The complainant, Nationwide Homes, Inc., is a general contractor in Lake Havasu City, Arizona. This complaint concerns the stucco work provided by the respondent as subcontractor of the complainant on a residence in Bullhead City, Arizona, that was constructed by the complainant. 3. Mr. Michael V. Bottai purchased the residence in question from the complainant, and took possession thereof on February 8th, 1999. Mr. Bottai saw several areas of the stucco on his new home that he believed needed correction. He notified the complainant of this and was assured that the corrections would be made. 4. Several months had passed without the stucco being corrected when Mr. Bottai was informed by the complainant that, due to the large number of areas that were in need of correction, rather than complainant perform them as “touch-up” items, the complainant would require the respondent to return to the job-site and redo the stucco in those areas. 5. No corrective work had been performed by February of 2000, when Mr. Bottai and his wife sent a letter to the respondent complaining of the stucco work being defective. His complaints included chicken wire (or lath wire) being exposed and sticking out from the stucco, lack of texture, inadequate finish, and lack of color match. This letter was copied to the complainant. 6. The complainant sent a customer service repair work order to the respondent on February 22nd, 2000, instructing respondent to correct the stucco according to the Bottai letter, and obtain the signature of the Bottais after the corrections were completed, signifying their acceptance of it. 7. On March 27th, 2000, a worker employed by the respondent went to the job- site and performed some corrective work. However, neither Mr. nor Ms. Bottai signed off on the work as being acceptable. They remained dissatisfied with the stucco as a finished product. 8. Complainant contacted Mr. Bottai to inquire of him why he did not sign off on the work. Mr. Bottai informed the complainant that there remained areas of the stucco where the wire was showing through, paper was exposed, texture was not adhering, and texture was too thin. 9. Complainant contacted respondent again to ask respondent to return and make further corrections. Respondent countered that request with his request that a Registrar of Contractors Inspector conduct a courtesy inspection of the work performed to date. 10. Complainant contacted Registrar of Contractors Inspector Bill Redman to see if he would perform the courtesy inspection. Inspector Redman declined for reasons irrelevant to this complaint. 11. At last, faced with a dissatisfied customer and a subcontractor who refused to make further corrections, the complainant filed with the registrar’s office a complaint against the respondent relative to the Bottai residence on June 6th, 2000. Subsequently, the complainant was informed that that complaint was signed by an individual who was not a corporate officer, and therefore an individual lacking capacity to sign the complaint. Without the complaint ever being dismissed, or motion by the respondent to dismiss the complaint on that ground, an amended complaint was filed on July 13th, 2000, signed by Ms. Nina S. Tate, President of complainant. 12. Inspector Redman conducted a job-site inspection on June 22nd, 2000. Present at the inspection were the respondent/owner and a representative of the complainant. Inspector Redman saw several defective conditions in the stucco work, however, as he testified at the hearing, he saw no exposed chicken wire. The inspector issued a Corrective Work Order to the respondent dated July 12th, 2000. 13. The inspector’s Corrective Work Order directed the respondent to make the following corrections: “1. Redo repairs to stucco that have cracked and/or are falling off. Recolor to match existing as close as possible. 2. Repair stucco where trowel marks are showing. Recolor to match existing as close as possible.” Inspector Redman allowed the respondent calendar days from the date of the CWO to make the corrections, which was a reasonable amount of time to do so. 14. Respondent declined to make any further attempts to correct, being of the opinion that the only work the house needed was painting, and once painted it would be acceptable. 15. Respondent notified the complainant by letter on July 24th, 2000, that he disagreed with the CWO. No further corrective work has been done to the stucco since respondent’s initial efforts in March of 2000. 16. The preponderance of evidence at the hearing supports the finding that the stucco work of the respondent on the Bottai house was below minimum workmanship and industry standards. The stucco was flaking and crumbling to the touch in several areas, and in several areas the stucco was so thin as to be below minimum workmanship and industry standards (in places only 1/16 of an inch). There were areas of the stucco that were not textured; there were trowel marks showing, and there were actually holes in some places. 17. Respondent should return to the job-site and make the corrections enumerated by the inspector in the CWO. 18. 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 in the instant Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 3. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the Arizona contractors’ laws, without valid justification, within a reasonable period of time, after receiving a written directive from the registrar to do so. The written directive in this case is the CWO. The CWO allowed a reasonable amount of time to make the corrections, and the facts did not support a finding that the respondent had any valid justification for failing to comply with the CWO. As the CWO directed the respondent to comply with the contractors’ laws of this state (correct to within minimum workmanship and industry standards), the respondent did violate A.R.S. §32-1154.A.23. 4. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in the Citation and Complaint is A.A.C. R4-9-108, Workmanship Standards. The respondent violated that rule’s provisions at sections A. and B. in that respondent’s work was not up to professional industry and workmanship standards. Respondent violated A.R.S. §32-1154.A.3. 5. A.R.S. 32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act, as a contractor, which substantially injures another person. There was no evidence of fraud on respondent’s part. There is no evidence of a violation of this section by the respondent independent of the previously concluded violations. RECOMMENDED ORDER In view of the foregoing, it is recommended that the respondent’s Class C-36 License shall be suspended until the Registrar of Contractors receives proof that the respondent has properly completed the corrective work set forth in the inspector’s Corrective Work Order (to include patching of any holes in the stucco). 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. H00-0277 shall be closed. Done this day, January 23rd, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of January, 2001, 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