ALJDEC decisions subject to certification as final

09F-Y0237-ROC · Registrar of Contractors · 2010-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 1, 2010 APPEARANCES: D. B. Builders, Inc. was represented by its authorized representative, Daniel Richard Berkey. Fromang Plastering, Inc. was represented by its attorney, Dana R. Stoker, Esq. 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. Fromang Plastering, Inc. (“Respondent”) is the holder of License No. 167512, a Class C-36 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On June 19, 2009, Daniel R. Berkey, on behalf of D. B. Builders, Inc. (“Complainant”), filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on a project located at 355 Paseo Arroyo, Quartzsite, Arizona. [1] The Registrar designated the Complaint as Case No. Y09-0237. 3. Respondent served as Complainant’s stucco subcontractor on the subject project. Complainant’s Complaint alleges that Respondent’s deficient workmanship is evidenced by “stucco cracks on all exterior walls north east south & west sides.” Complainant seeks to have Respondent repair its deficient workmanship. 4. The Registrar issued a Citation and Complaint in Case No. Y09-0237 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 5. The Registrar forwarded Case No. Y09-0237 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Pursuant to contract, Respondent applied a smooth stucco finish to the exterior of the subject residence. 7. Complainant paid Respondent the sum of $11,000.00 for the lath and stucco work performed on the subject residence. 8. At hearing, the parties stipulated to the testimonial evidence presented in Case No. Y09-0225, which is incorporated herein by reference. Based upon that stipulation, the Administrative Law Judge makes the following Findings of Fact: a) In response to the filed Complaint, the Registrar’s assigned inspector, Daryl McCloskey, performed a jobsite inspection to view Respondent’s allegedly deficient stucco application. Inspector McCloskey found excessive hairline cracks, with some cracks appearing greater than 1/8”.[2] b) As a result of the jobsite inspection, Inspector McCloskey issued a Corrective Work Order, the terms of which are incorporated herein by reference, which directed Respondent to timely perform remedial repairs to its deficient workmanship. c) It is uncontroverted that Respondent did not comply with the Registrar’s written directive to repair the deficient stucco application. d) Respondent’s president and qualifying party, Gilbert A. Fromang, opined at the hearing that Complainant did not use the appropriate paint on the stucco. Mr. Fromang testified that Respondent had recommended that Complainant use an acrylic or elastomeric paint on the stucco. He contends that those types of paint products expand with concrete cracking and seal such cracking. e) Mr. Fromang further testified that Respondent did not comply with the Corrective Work Order because Respondent did not believe that it was responsible for the cracking being visual as a result of Complainant’s use of an inappropriate paint. Mr. Fromang stated that he has since gone to work as a truck driver. f) At hearing, Craig Neubaur testified on behalf of Respondent. Mr. Neubaur has 35 years of experience in construction with 12 years experience in plastering. g) Mr. Neubaur opined that elastomeric paint expands with concrete. He noted that smooth stucco finish requires special treatment due to the fact that without such treatment it can result in more visible cracks. h) Mr. Neubaur further opined that the painting subcontractor was responsible for the deficiency since the subcontractor accepted the surface. i) Guy Muha testified on behalf of Respondent. Mr. Muha is a 1985 graduate of Arizona State University. Mr. Muha is a stucco contractor. j) Mr. Muha further testified that he assumed that Respondent did the lath and stucco work properly. k) Mr. Muha candidly opined that he does not know whether the present condition is a stucco or paint problem. Mr. Muha further opined that the exterior of the residence needs stucco repairs and repainting. l) Troy Somers is a sole proprietor doing stucco work as Adobe Plastering. m) Mr. Fromang worked for Mr. Somers in the past. n) Mr. Somers testified that a smooth stucco finish highlights flaws and is a terrible finish style. o) Mr. Somers opined that elastomeric paint can be used on smooth stucco, but the product may or may not solve cracking issues. p) Complainant’s painting subcontractor did not use elastomeric paint on Respondent’s smooth stucco application. q) At the time Respondent accepted Complainant’s subcontracting proposal, there was no specification as to what type of paint would be applied to the smooth stucco finish. r) Although Respondent claims to have informed Complainant that the smooth stucco application needed to be painted with an elastomeric or acrylic paint to reduce the appearance of cracking and to seal any such cracks, Respondent failed to document any such advice and also failed to obtain any written waiver from Complainant for liability of the smooth stucco application if an elastomeric or acrylic paint product was not used on the stucco. s) Respondent is responsible for the deficient stucco cracking that exceeds the 1/16” tolerance. 9. Complainant did not present any evidence to support a finding of a violation of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32- 1124(B). 10. A review of the Registrar’s official electronic records reveals that Respondent’s contracting license is current. 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(B). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (23) and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The record in this matter supports this conclusion. 4. Complainant failed to sustain its burden of proving the allegation that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 167512 shall be revoked on the effective date of the Order entered in Case No. Y09-0237. If Respondent fully complies with the Corrective Work Order issued in this matter on or before the effective date of the Order entered in Case No.Y09-0237, then the above-provided license revocation shall not take place but instead Respondent’s contracting license shall be placed on disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. Y09-0237. 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 in Case No. Y09-0237, pursuant to the provisions of 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. Y09-0237 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), unless payment of any outstanding prior civil penalty is tendered. 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, April 21, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Complaint filed by Mr. Berkey lists D.B. Builders, Inc. as the holder of License No. 168764. However, the Registrar’s official electronic records reflect Mr. Berkey, a sole proprietor doing business as D. Berkey Construction, as the holder of that license. The Registrar’s records further reflect that D. B. Builders, Inc. is the holder of License No. 220181. [2] According to the Registrar’s Workmanship standards for Licensed Contractors, “…[h]airline cracks, if excessive, or cracks that exceed 1/16” are unacceptable…Contractor should determine cause of crack and make necessary repairs.”

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