ALJDEC decisions subject to certification as final

09F-H0321-ROC · Registrar of Contractors · 2010-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2010 APPEARANCES: Fairway Constructors, Inc. was represented by its vice- president, Mehdi Azarmi. Stucco Masters, Inc. was represented by its president and qualifying party, James Hinojosa. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Fairway Constructors, Inc. (“Complainant”) is the holder of License No. 090937, a Class B- contracting license issued by the Registrar of Contractors (“Registrar”) 2. Stucco Masters, Inc. (“Respondent”) is the holder of License No. 191353, a Class K-36 contracting license issued by the Registrar. 3. Complainant was the general contractor for the construction of a new residence located at 1001 Riverfront Drive, Bullhead City, Arizona. 4. Complainant subcontracted with Respondent for stuccowork on the subject project. 5. Respondent completed the scope of its stuccowork and received compensation from Complainant in the amount of $31,911.00. 6. The purchasers of the completed residence moved into the home. 7. On April 7, 2009, Complainant filed a written Complaint with the Registrar alleging numerous deficiencies in Respondent’s stucco application. The Registrar designated the Complaint as Case No. H09- 0321. 8. The Registrar issued a Citation and Complaint in Case No. H09-0321 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32- 1124(B). 9. In response to the filed Complaint, the Registrar’s assigned inspector, William Redman, performed a jobsite inspection to view the Complaint items. That inspection resulted in Inspector Redman issuing a Corrective Work Order directing Respondent to timely perform the following remedial work:

Determine the cause of the excessive cracking, visible stud and foam lines and repair by appropriate means. All repairs must match the existing stucco texture and color as close as possible.

10. At the hearing, Inspector Redman testified that lath wire is visible in some areas of the stucco application. 11. Inspector Redman noted that the house was constructed in accordance with IBC 2003 building code requirements and that the house had passed inspections by the local building code authority. 12. Inspector Redman further testified that there are major cracks in the interior drywall of the residence. 13. Inspector Redman opined that the subject residence has the worse stucco cracking he has ever seen. 14. Complainant hired Western Technologies, Inc. to perform testing to determine if the stucco cracking was the result of the residence’s substrate. 15. Western Technologies, Inc. performed a manometer survey and stucco testing. 16. On June 19, 2009, Paul D. Davis, P.E., the Director of Geotechnical Services for Western Technologies, Inc., issued a report containing the results of the manometer survey. Based upon the results of the survey, he opined that “it is our opinion that floor slab elevations are currently within construction tolerances.” Mr. Davis further concluded that “observations of the interior and exterior of the home do not indicate distress related to settlement or foundation movement.” 17. On June 23, 2009, Raphael Tixier, Ph.D., P.E. and Dennis E. Roberts of Western Technologies, Inc., authored a report of the sampling and testing of the stucco applied to the subject residence, which were performed “to obtain information concerning the thickness and sand content of the base coat of the applied stucco.” The report noted that “[t]the average value for base coat thickness noted in Table No. 2 for all samples is less than 3/8 in.” 18. Applicable standards require that base coat thickness be a minimum of 3/8”. 19. Mr. Roberts testified at the hearing, during which he opined that there are no structural issues with the residence’s substrate. He testified that sampling and testing found no movement in the house’s foundation. 20. Respondent contends that the source of the cracking could be an elevator. However, construction of the elevator was inspected by an elevator inspector and passed inspections. Respondent failed to provide any probative evidence establishing such contention. 21. Despite Respondent’s claim that it wants to find out the true cause of the problem prior to performing any repairs, Respondent has not undertaking any steps to investigate the cause of the deficiencies in the stucco. Respondent failed to comply with the Registrar’s Corrective Work Order. Respondent’s inaction demonstrates a blatant disregard for the Registrar’s written directive. 22. Respondent’s failure to comply with the Registrar’s Corrective Work Order is a wrongful act resulting in substantial injury to Complainant. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. 4. Complainant did not submit any evidence as to the allegation that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B). Therefore, there is no factual basis to support that allegation. RECOMMENDED ORDER Respondent’s License No. 191353 shall be revoked on the effective date of the Order entered in Case No. H09-0321. If Respondent provides the Registrar with proof that it has fully complied with the Corrective Work Order on or before the effective date of the Order entered in Case No. H09-0321, and the Registrar accepts such proof, then the above-provided license revocation shall not take place, but instead Respondent’s contracting license shall be placed on disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. H09-0321. In addition to the above-provided penalties, if any, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. H09-0321 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32- 1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $2,500.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided 24-month period and only if no claims are then pending. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, March 3, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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