ALJDEC

01F-2006-ROC · Registrar of Contractors · 2001-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2001 APPEARANCES: Randy Forsberg appeared on behalf of Complainant D.A.C., Inc. Respondent Jack D. Robles appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this matter is whether Respondent Jack David Robles is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Complainant D.A.C., Inc. (“D.A.C.”) is the holder of a Class B license (No. 138274) issued by the Registrar of Contractors (“ROC”). Randy Forsberg is D.A.C.’s qualifying party. Respondent Jack David Robles, doing business as Robles Painting (“Robles”), is the holder of a Class C-34 license (No. 147744) issued by the ROC. Some time prior to December 1999 (the record is not clear as to the precise date), Robles entered into a contract with D.A.C. to perform interior and exterior painting at a home under construction in Phoenix, Arizona. The exterior surface of the home in question was composed of stucco, and the homeowners had chosen a moderately dark green color (“Saguaro Green”) with which they wanted the exterior to be painted. Because the homeowners had chosen a moderately dark exterior color, D.A.C. was particularly concerned about the possibility of efflorescence. “Efflorescence” refers to the condition that occurs when mineral salts leach out of the stucco and become visible on the surface as light- colored patches. To protect against the potential for efflorescence at the home in question, D.A.C. requested that Robles apply a sealant to the stucco prior to painting. Robles agreed to do so at an additional cost of $700.00. Beyond reaching agreement as to the exterior color to be used and the application of the sealant, the parties did not specify the type of materials to be used by Robles or the manner in which such materials would be applied. At hearing, Mr. Forsberg credibly testified that D.A.C. relied on Robles’ expertise regarding how the work would be performed. Robles completed its work between December 1999 and January 2000. At no time prior to completing its work did Robles indicate to D.A.C. that any problems existed with the stucco surface, or that visible efflorescence might result even with the application of the sealant. On January 21, 2000, Robles issued an invoice to D.A.C. for charges in the amount of $2,328.50 (including the $700.00 charge for application of the sealant), which invoice D.A.C. paid in full on January 24, 2000. As of February 9, 2001, significant areas of efflorescence were visible on the exterior surface of the home in question. That day, D.A.C. filed a complaint against Robles with the ROC alleging that Robles had not properly applied the stucco sealant prior to painting the home. ROC Inspector Joseph Cotten investigated D.A.C.’s complaint. On February 28, 2001, Inspector Cotton conducted a jobsite inspection at the home in question. Upon the conclusion of his inspection, Inspector Cotten determined that the efflorescence was not attributable to poor workmanship by Robles, but was instead attributable to poor workmanship in the stucco application. Specifically, Inspector Cotten identified excessive microcracking in the stucco as the cause of the efflorescence.[1] Subsequent to his initial determination, after having conducted further research on the issue, Inspector Cotten reversed his previous determination and concluded that the microcracking he observed in the stucco would not have caused the observed efflorescence if the stucco had been properly sealed or, alternatively, if the paint had been properly applied. At hearing, Inspector Cotten elaborated on this conclusion by identifying as possible causative factors (i) overdilution of the sealer, (ii) overdilution of the paint, (iii) failure to backroll, or (iv) a combination of some or all of these factors. Mr. Robles testified at hearing that he applied the sealant and paint to the home in question in accordance with the manufacturer’s specifications, and that he has performed similar work on other homes without having experienced similar problems. Mr. Robles urged that because he was not given any specifications as to how the work was to be performed, he should not be held responsible for the efflorescence that has since occurred. On June 1, 2001, the ROC issued a Citation and Complaint charging Robles with violations of A.R.S. § 32-1154(A)(2) (departure from or disregard of plans and specifications), (A)(7) (wrongful or fraudulent act resulting in substantial injury), and (A)(3) (violation of any rule adopted by the ROC, in this case, Rule R4-9-108 covering workmanship standards). CONCLUSIONS OF LAW In this proceeding, D.A.C. bears the burden to prove, by a preponderance of the evidence, that Robles is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3) and/or (A)(7) as charged by the ROC in its June 1, 2001 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that D.A.C. met its burden of proof as to two of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans and specifications . . . in any material respect which is prejudicial to another. . . .” The Administrative Law Judge concludes that the only specification agreed to by the parties (apart from the paint color) was that Robles would apply a sealant to the stucco prior to applying the exterior paint. Otherwise, D.A.C. left the details of the painting to Robles.[2] The evidence demonstrated that Robles applied the sealant as required under the contract between the parties. Thus, D.A.C. failed to establish that Robles departed from the plans and specifications for the home in question, and in turn failed to establish that Robles violated A.R.S. § 32- 1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Robles with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. When Robles entered into the contract with D.A.C. to perform the work at issue, it did so with knowledge of (i) the dark color with which the home was to be painted, and (ii) D.A.C.’s specific concerns about the potential for efflorescence. Robles accepted these conditions, and at no time prior to completing its work did Robles indicate to D.A.C. that any problems existed with the stucco surface, or that visible efflorescence might result even with the application of the sealant. There is no credible or probative evidence in the record to suggest that the efflorescence was caused by any factors other than those that can be attributed only to Robles, i.e., materials and/or application. Thus, Robles bears responsibility for the efflorescence, which stands as evidence that Robles failed to perform its work at the home in question in a professional and workmanlike manner. Therefore, Robles violated A.A.C. R4- 9-108 and in turn A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, from the evidence presented, that Robles committed a wrongful act that substantially injured D.A.C. when it failed to perform its work at the home in a workmanlike manner, thus permitting extensive efflorescence to occur. Therefore, Robles violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Robles’ license. The ROC’s June 1, 2001 Citation and Complaint advised Robles that in the event of a finding of a violation against it, Robles’ prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Robles in the ROC’s official records. Those records revealed that Robles has not been the subject of any ROC disciplinary orders within the past two years. The Administrative Law Judge considered this disciplinary record when determining appropriate recommended discipline for this matter. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that Robles’ Class B license should be suspended. The Administrative Law Judge further concludes, however, that such suspension should be conditional and that Robles should be given the opportunity to avoid suspension by repainting the home in question in such a manner as to avoid the re-occurrence of the efflorescence that gave rise to the instant case. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Commencing on the effective date of the Order entered in this matter, Robles’ Class C-34 license shall be suspended until the ROC receives written proof that Robles has, at its sole expense and in a professional and workmanlike manner, repainted the home in question in such a manner as to avoid the re-occurrence of the efflorescence that gave rise to the instant case. If the ROC receives written proof that Robles has complied with the foregoing condition on or before the deadline identified above, then the above provided license suspension shall not take place.

Done this day, October 15, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] As used herein, the term “microcrack” refers to a crack that is hairline or less in width. [2] There is no evidence in the record to suggest that D.A.C. unreasonably relied on Robles’ expertise to appropriately select and apply both the sealant and paint to the home.

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