ALJDEC

01F-2198-ROC · Registrar of Contractors · 2001-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 2001 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its vice-president, Tom Carlson. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainants purchased new home construction from Respondent. Complainants allege a specified deficiency in the construction of their home and same is discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. On or about August 15, 1996, Complainants moved into their new home, which was constructed by Respondent. b. On or about December 18, 1997, Complainants filed their original complaint with the Registrar of Contractors, alleging a number of deficiencies in the construction of their new home, including cracking and separation that they observed in the east perimeter and street side perimeter block fencing. c. According to Complainants, in January 1998 the assigned inspector for the Registrar of Contractors conducted a jobsite inspection at their home and, among other things, ordered Respondent to repair the cracks in the stucco that were present in the perimeter walls. d. The above-described repairs were accomplished by Respondent. However, within a short period of time the cracks reappeared. According to Complainants, on or about February 1998 Respondent’s fence subcontractor returned to the property to accomplish further remedial work on the cracking in the fence. Complainants averred that the subcontractor advised them, at that time, that one of the walls needed to be torn-down due to structural problems and that the stucco application had been applied too thin. The wall was never replaced and only cosmetic repairs were accomplished. e. According to Complainants, the cracks reappeared after the second attempt by Respondent to repair same and on March 17, 1998 the Registrar again ordered Respondent to make further repairs to the cracks in the walls. Respondent made further repairs shortly thereafter. f. Evidence of record established that on September 23, 1998 the Registrar issued a Corrective Work Order which provided, in pertinent part, “cracks in perimeter continue to return, including major cracks in east perimeter wall.” g. Subsequent to issuance of the aforementioned September 23, 1998 Corrective Work Order, Respondent again performed some minor form of cosmetic repair to the cracking present on the perimeter walls. h. On or about April 20, 1999, Respondent performed further repairs to the cracks that had returned subsequent to the remedial work accomplished after the September 23, 1998 Corrective Work Order. i. Although the cracks reappeared shortly after the above-described April 20, 1999 remedial work, Complainants were disgusted at this point and thus, failed to file another complaint regarding the wall cracking until the instant complaint was filed with the Registrar of Contractors on March 5, 2001. j. Complainants presented photographic evidence and testimony, sufficient to support a finding that their is extensive cracking on the walls, including stair-step cracking, elongated vertical cracks, and joint separation wherein the stucco has chipped off the surface. In addition, Complainants testified that the paint repairs performed by Respondent, subsequent to repairing the stucco, failed to provide an adequate match with the adjacent existing painted areas of the block walls. k. Complainants’ testimonial evidence, that the cracking present on their stucco surface wall was highly visible from a significant distance away from the wall, was uncontroverted. l. Respondent contends that the issues set forth herein are mere homeowner maintenance issues, due to the length of time Complainants have occupied their home. m. The current assigned inspector (the successor inspector from the individual that performed the inspections in 1998) for the Registrar of Contractors appeared at the instant hearing and opined that he did not believe the cracking was a result of structural failure in the walls in question. He further indicated that according to the Registrar’s booklet on minimum workmanship standards, Respondent should have no responsibility for repair of any cracks that were not shown to be greater than 1/8 inch in width, notwithstanding the high visibility of the stair step cracking areas of the wall.

3. It is determined and held that the Registrar’s booklet on minimum workmanship standards is nothing more than a guideline upon which to base findings regarding the adequacy of construction work. It does not have the force and effect of law. While any single crack, standing alone, might be held to be acceptable or within tolerances, when the cracks are considered in combination, the quantity, location, visibility, and seemingly never ending reoccurrence of same is found and determined to render the work on the perimeter walls to be aesthetically unacceptable and thereby substandard. In addition, the failure of the paint touch-up to provide an even and homogenous colored surface is indicative of unacceptable and substandard workmanship.

4. Regardless of the fact that it has been over five (5) years since Complainants initially occupied their home, Respondent has continually attempted, over said period of time, to perform remedial work with the intent of terminating the excessive cracking on the east and street-side portions of the perimeter wall. These prior remedial efforts are found to have been nothing more than cosmetic “Band-Aid” attempts, which have failed to adequately and effectively terminate the construction deficiency.

5. The mere fact that Respondent performed a less expensive or less extensive inspection and repair, than was required to effectively fix the problem, does not alter the fact that the remedial work performed by Respondent must be capable of correcting the problem for an additional two years from the date of completion of the “corrective work.” Moreover, since the repair work performed in 1999 also failed to stop the cracking, Complainants filing of the instant complaint in March 2001 is found to have been filed within the statutorily allowed period for filing complaints referable to substandard construction work.

5. Respondent’s continuing failure to correct the cracking on the perimeter walls, over an elongated period of time, is found to not only constitute substandard and unacceptable workmanship but also a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

6. Homeowners need not suffer through a seemingly endless succession of inadequate and/or ineffective repair efforts by a contractor. Respondent is on notice that although it is free to choose the method of accomplishing required remedial work, any contractor that elects to perform corrective work in a manner that may be less extensive and less expensive than a complete replacement of the walls, acts at its peril to accomplish results which shall be adequate and effective.

7. Although the facts presented herein do not justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor an opportunity to correct construction deficiencies which are determined at a hearing, Respondent is on notice that it will have one, and only one, final opportunity to correct the deficiencies set forth in the Order entered in this matter.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the cracking located on the east wall and street side wall of the perimeter fence located on Complainants property. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on a period of 90 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later.

Done this day, October 22, 2001

______________________________________ Mark A. Silver 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