ALJDEC

01F-L0186-ROC · Registrar of Contractors · 2001-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 12 September 2001 APPEARANCES: Complainant: Ray Gillespie. Respondent: Tim Windholz, owner of T.W. Homes. Others: Cliff Corlett, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A), specifically subsection 7, 23 and 3 (namely AAC R4-9-108), by failing to properly clean up certain construction-related debris and damage, stucco stains, unstable sliding door tracks and other miscellaneous items. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under- signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Complainant contracted with Respondent to build a residential home in the Lake Havasu area, which was completed in August 2000. The plans for the house were provided to Respondent by Complainant’s son, a draftsman. 2. Complainant filed a complaint with the ROC on 16 March 2001, with an amendment dated 23 March 2001. Cliff Corlett of the ROC did a job site inspection of the home on 30 March 2001, and issued a Corrective Work Order to Respondent on 3 April 2001. By the date of the hearing in this case, Mr. Corlett indicated only item #1 (kitchen skylight cleaning required) remained to be completed by the Respondent. The skylight in question has some paint overspray spots and some residual adhesive from an manufacturer’s sticker remaining on the plexiglass that needs to be removed. The work with regard to Item # 3A (discolored stucco near entryway) had been completed by Respondent in that Respondent had fogcoated the stucco. It needed to age somewhat in order for the color to match the rest of the home, but Complainant watersealed the fogcoated area soon thereafter. Mr. Corlett stated that ROC policy is that with regard to surfaces, once a new substance (i.e., paint, stucco, waterproofing, etc.) has been applied to the surface, the underlying surface is deemed to have been accepted. 3. Complainant indicated the stucco stain by the entryway was due to excess water being diverted off the flat roof behind the parapet above the garage, down along a trough between the length of a sloping side roof beneath the parapet and the upright wall of the entryway, and ultimately spilling over the edge of the side roof where the upright entryway wall terminates. Complainant stated he did not realize that such a runoff would stain his stucco. After the stucco was stained, Respondent had offered to put in a downspout in one of the entryway columns to handle the runoff from the garage for $800-$900, but Complainant declined due to the expense. 4. Respondent stated that paragraph 15 of the contract between Complainant and Respondent only required Respondent to leave the premises in a “neat and broom cleaned condition”. With regard to the stained stucco and drains, Respondent stated the plans for the home called for 6 drains on the roof. However, the main flat roof area of the home required drains, rather than the 2 contemplated by the plans. So, with the concurrence of the Complainant , one of the drains from the garage roof area was relocated to the main roof area. The water runoff from the garage was then channeled down a single drain that drained onto the side roof and over the side of the house. Respondent pointed out that the side roof line did not have a drip line, and that the stucco was designed on the plans to be flush with the roofline. Such a design will allow water to run down the side of the house. After the staining occurred, Respondent fogcoated the stucco, and then told Complainant to waterseal the stucco after the stucco had aged and blended in color with the other stucco so that further water damage would not occur. Respondent later found out that Complainant had watersealed the stucco before the fogcoating had a chance to age and blend. An examination of the house plans reveal that even if the garage roof water was not diverted over the side roof, the runoff from the area between the side roof and the upright entryway wall would still run over the affected stucco area.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. Although Respondent argued that he was only required to leave the house in a neat and broom cleaned condition upon completion of the home, fixtures should be left in a serviceable condition for which they were intended. Skylights and meant to transmit light; therefore, they should not be encrusted with extraordinary debris or detritus that obscures that function after the contractor has installed it. Everyday dirt and dust are ordinary debris expected to accumulate over time, but paint speckles and sticker adhesive are not ordinary accumulations of debris and should be removed. As for the stucco stain and the water runoff, Respondent has corrected the stucco problem in the manner suggested by the ROC inspector. Any actions taken by the Complainant after such correction are the responsibility of the Complainant. In any event, the Complainant has not proven by a preponderance of the evidence that the stain was a proximate cause of the water from the garage roof. An examination of the basic house plans reveals that extraordinary amounts of rain runoff would have occurred over this same piece of stucco even without the extra runoff from the garage roof occasioned by the roof drain design change. The area stained by the stucco would have experienced excessive runoff from the area of the side roof starting from the point the water runs of the side roof back to the side of the house bracketed by the entryway upright wall and the garage parapet. Thus, it is well within the realm of possibility that the stucco would have been stained regardless of the garage roof drain design change. 3. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent, with respect to Item #1 of the CWO, violated ARS §32-1154(A), specifically subsection (23), by “failing to take appropriate corrective action…. within a reasonable period of time after receiving written directive from the registrar.”

RECOMMENDED DECISION It is recommended that the ROC In view of the foregoing, it is recommended, commencing on the effective date of the ROC’s Order, that Respondent’s Class B license be temporarily and actively suspended until the ROC receives proof adequate to the ROC that Respondent has complied with Item #1 of the CWO; namely, cleaning Complainant’s kitchen skylight of paint overspray speckles and sticker adhesive.

Done this day: 28 September 2001

______________________________________ Maurice McWhirter 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