ALJDEC

01F-0822-ROC · Registrar of Contractors · 2001-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2001. APPEARANCES: Michael Markham, Complainant; Leonard Barilone, Respondent’s representative; and Les Combs, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Michael Markham has established by a preponderance of the evidence that the Respondent violated A.R.S. § 32-1154(A)(3), (7) and (23). Based on the evidence and the Respondent’s record with the Registrar of Contractors, I recommend that the Registrar of Contractors impose a provisional suspension of Respondent’s license until it has replaced or repair the damaged and uncorrected items and until Respondent has paid restitution to Complainant in the amount of $836.00 along with an additional suspension of 7 days and a probationary period of 180 days. I also recommend that Respondent’s bond be increased to twice its current amount for a period of two years. FINDINGS OF FACT 1. On September 19, 2000, Michael Markham filed a complaint with the Registrar of Contractors against Tuccino Brothers Plastering, Inc. regarding the stucco applied to his home. On October 4, 2000, a Registrar of Contractors Inspector conducted a job site inspection. Although there were 10 items in the complaint, he ordered only one to be corrected in his ensuing Corrective Work Order dated October 23, 2000. 2. The item to be corrected was a lumpy texture at the bottom of some window wells. This was not corrected by the time of the hearing. Mr. Markham requested a hearing on his complaint. He submitted that the corrective work was not performed and that the other items should have been included in the Corrective Work Order as well because they did not meet minimum workmanship standards and had caused collateral damage to his home. 3. Primarily, the home had suffered considerable damage as a result of the Respondent’s failure to properly cover the work sites around the house. In one area, the workers had laid a 10 foot wide cover and no damage was sustained there. But in the front, side and by the sport court, foot wide covers were laid and workers had tracked through the stucco and finish coat onto the sport court and across the new paving stones in the front drive. Drips of the material also dotted the top of the decorative wall at the side of the property. Because the material was acrylic and the coating in the sport court is too, attempts to clean it have removed some of the coating too. The wall and paving stones are porous material and attempts to clean them have been unsuccessful as well. 4. As part of the project, Respondent stuccoed the top of a low wall at the front of the property. This was done toward the end of the job. When the Respondent had stuccoed most of the wall, the workers ran out of material. They returned another day but the interruption of their work created a separation in the stucco and the finish does not appear uniform. 5. The Registrar of Contractors Inspector did not order correction of the spilled or tracked material because he could not determine that the material was the stucco or finish coat rather than material from another trade that was on the site. He also originally found that the staining was slight and only visible when wet. When he viewed current photographs of the stains, he agreed they were substantial and more visible now. They stains had appeared lighter at the job site inspection because of the Complainant’s attempt to clean them. He had hired someone to do a soda wash of the paving stones and sport court. The soda left a light residue that made the stains appear lighter (because the paving stones themselves looked lighter). When the soda faded away, however, the stains stood out as much as they had before. 6. In response to the Registrar of Contractors Inspector’s testimony that he could not determine for a certainty which trade had caused the staining, Complainant called the architect on the project as a witness. He also inspected the site and found that it was clear that the material was from the stucco workers. While tile workers had worked in some areas of the home, the material that was spilled or tracked was consistent wherever the stucco workers had been. This included areas where the tile workers had not been. Complainant also offered the testimony of two other witnesses, the general superintendent on the project and the general contractor, who each witnessed the Respondent’s workers staining the paving stones. Though they both complained at the time, Respondent’s workers stated that they would clean up the mess after the job was done. 7. Complainant wants the Respondent to repair or cause to be repaired the wall, window wells and clean-up at the sport court, retaining wall and paving stones. He also wants reimbursement for the expert testimony of his architect, for which he paid $500, and for the soda wash, which was $336. He provided evidence of both costs at hearing. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case requires contractors to meet minimum workmanship standards when completing a project. A.A.C. R4-9-108. In this case, destroying the surrounding property was an act that did not meet minimum workmanship standards. Failure to complete the work properly by giving the stucco a uniform finish at the window wells and on the front wall is also a failure to meet minimum workmanship standards. Therefore, Complainant has established a violation of this section of the statute. 4. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. Respondent’s destruction of the Complainant’s property was a wrongful act. The difficulty of cleaning it, which will probably involve replacing many paving stones, recovering the sport court and replacing some stones on the retaining wall, was a substantial injury to the Complainant. Therefore, Complainant has established a violation of this section of the statute by Respondent as well. 5. The Arizona Revised Statutes at § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. Respondent admits that the corrective work ordered by the Registrar of Contractors Inspector was not done. Respondent argues that the area is hard to reach. This is not a valid justification for failing to complete the job because it was not established that the task was impossible. Therefore, this section of the statute was also violated by Respondent. 6. In this case, the Complainant argued that Respondent’s work did not meet minimum workmanship standards and violated the applicable statutes because of the mess the workers made, the split in the wall from running out of material and the lumpy stucco at the bottom of the window well. 7. Respondent argued that other trades may have made the mess or may have tracked through the stucco and that the bottom of the window well was hard to reach. The evidence showed that only the stucco workers could have made the mess because there was staining in areas the other trades did not go. Respondent must be responsible for keeping other trades from tracking its materials and for completing its job, even in hard-to-reach areas. Failure to do so results in harm to those who trust licensed contractors to do a professional job. The public should also be able to rely on licensed contractors knowing their profession well enough that they can be counted on to plan their projects professionally enough not to run out of material and cause a break in the finish of a home. 8. Complainant has established a violation of A.R.S. § 32- 1154(A)(3), (7) and (23). Therefore, the Registrar of Contractors should impose an appropriate penalty in keeping with its purpose of protecting the public. 9. Pursuant to A.R.S. § 32-1156.01, an Administrative Law Judge may recommend restitution to any person whose property is damaged by an action of a licensee. Complainant should recover the cost of attempting to clean Respondent’s mess because he did so after Respondent failed to do it. Complainant should also recover the cost of his witness because the witness was necessary to counter the argument that the mess was caused by trades other than Respondent. Had Respondent admitted that it allowed its material to be tracked, the expert witness would not have been necessary. 10. Respondent’s record with the Registrar of Contractors shows 17 complaints against this license, 15 of which were filed by Richard Best Construction. RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, (thirty-five [35] days after the date of mailing by the Registrar of Contractors) that Respondent’s Class K- license be temporarily and actively suspended until the Registrar receives proof that the damaged retaining wall stones, the acrylic coating on the sport court (Complainant to be responsible for repair of the cracks) and paving stones are cleaned or replaced by licensed contractors, until the window well and wall are repaired, and until Respondent has reimbursed Complainant $836 for the witness fee and soda wash. It is further recommended, in addition to the foregoing indefinite license suspension, if any, that Respondent’s Class K-36 license be placed on active suspension for a period of seven (7) days, followed immediately by a period of l80 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Registrar’s Order or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. The Registrar of Contractors is empowered by statute (A.R.S. § 32- 1152) to increase the license bond of a contractor after a disciplinary hearing in an amount up to ten times the sum otherwise required based on annual gross volume. Under all the facts and circumstances in this case, some portion of the aforesaid power should be exercised, to be applicable for a fixed time period. I recommend that Respondent’s bond by increased to twice its current amount for a period of two years.

Done this day, March 2, 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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 ________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826