ALJDEC

01F-T0019-ROC · Registrar of Contractors · 2001-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2001; at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Pat Lopez. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

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 is the holder of a Class B License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a new residence constructed by the Respondent. There was no dispute that the Complainant moved into the residence on May 1, 1998. 3. The same parties have participated in a prior hearing which took place on April 4, 2000. 4. On July 7, 2000 the Complainant filed another complaint alleging that (1) there is a leak on or under the window in the dining room, (2) that the caulking that was installed in March, 1999 was chipping off, and (3), that his grading had been damaged by concrete replacement work which was performed in January, 1999. 5. At the onset of the hearing, the Complainant stipulated that the only item that remained at issue was the leak on or near the dining room window that the Complainant now believes is caused by a damaged weep screed. 6. There was no dispute that the Respondent has performed prior caulking work around the window in an attempt to correct the problem of moisture penetration into the residence. 7. Credible evidence established that the Complainant has never filed a complaint regarding the weep screed and that the Respondent has never performed any corrective work on the weep screed. Based upon the foregoing, it is found that the weep screed cannot be added as an issue based upon the expiration of the applicable two year statute of limitations and that it can only be considered if there is sufficient proof that it is causing moisture to penetrate into the residence. 8. There was no credible evidence presented to establish that any problem with the weep screed was causing moisture to penetrate into the interior of the residence. 9. Credible evidence, presented at hearing, established that the Respondent has performed additional corrective action around the dining room window area by applying an elastic type of coating on the exterior stucco and that this corrective effort may properly eliminate the moisture penetration problem. 10. The Registrar of Contractors does not specify methods of repair nor does it allow a homeowner/complainant to do so. Instead it requires that a licensed contractor take whatever actions necessary to correct a specified problem to within applicable industry standards. 11. The testimony was that the moisture penetration problem only occurs when there is a major storm and that the effectiveness of the Respondent’s chosen repair cannot be evaluated until the next major storm. As of the date of the hearing, credible evidence established that the Respondent’s chosen method of repair is an industry approved method of repairing such problems and that it may correct the problem. If it fails to properly correct the moisture penetration problem, then the Respondent shall have to undertake a more extensive corrective action to correct the moisture penetration problem. At this time no further corrective action to correct the moisture penetration problem is required. 12. Credible evidence established that the Respondent failed to properly touch-up the paint on the exterior of the Respondent’s residence where the elastic material was applied. The Respondent shall cause the exterior of the Complainant’s residence where the elastic material was applied to be properly touched up. 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (3); namely, Rule R4-9-108. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class B License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly caused the exterior of the Complainant’s residence to be properly touched up. The Respondent shall ensure that all of the elastic material applied to the Complainant’s residence is painted to match the surrounding areas. 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. T01-0019 shall be closed. Done this day, February 1, 2001.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of February, 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