ALJDEC decisions subject to certification as final

2010A-21090435-ROC · Registrar of Contractors · 2010-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Michael Ward. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent is the holder of License No. 089848, a Class C-36 License, issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed exterior stucco work on the Complainant’s residence pursuant to a construction agreement with the Complainant’s general contractor. 3. The Complainant’s general contractor contracted with the Respondent in order to comply with a Decision and Order issued in Docket No. 08F-M0304- ROC. 4. The Decision and Order in Docket No. 08F-M0304-ROC provides, in pertinent part, as follows: 4. The price to remove the existing stucco system and install full shear panels was $2,500.00. The price to install the synthetic stucco system with integrated color was $18,500.00. 5. Complainants clearly bargained for a synthetic stucco system with integrated color that would be low maintenance because it would not require repainting as frequently as a non-synthetic stucco system without integrated color…12. The manufacturer of the synthetic stucco system PLEKO recommended “painting the home with a100% acrylic polymer paint in a color approved by the Complainants.” Respondent also presented evidence that the industry standard of curing the fading color of the stucco is to repaint the stucco. 13. Complainants object to painting the stucco system as a solution to the faded color. They paid a premium price for the synthetic stucco system with integrated color because the color would be in the stucco and it would require much less homeowner maintenance since the surface would not require painting as frequently as a normal stucco system. 14. Complainants have not received the benefit of their bargain with Respondent. Notwithstanding the evidence that the industry standard solution is to paint the stucco, that solution is not appropriate in this matter. That solution will not give Complainants the benefits they contracted and paid Respondent to achieve…RECOMMENDED ORDER Respondent’s License …shall be suspended on the effective date of the Order entered in Case No. M08-0304 until Respondent has provided the Registrar with written proof, and such proof is approved by the Registrar, that Respondent has accomplished the following: 1. That Respondent has provided Complainants with a synthetic stucco system with integrated color, as provided by Change Order 100 and not a repair to the existing stucco system using paint, or has reached a settlement with Complainants over the stucco issue. 5. There was no dispute that the Complainant’s general contractor then contracted with the Respondent in the case at issue to remove and replace the Complainant’s stucco system. 6. There was no dispute that the Respondent removed and replaced the Complainant’s exterior stucco system with a new integrated color synthetic stucco system. 7. Credible testimony and evidence established that the new integrated color synthetic stucco system showed signs of fading and discoloration within thirty days of the completion of the installation of the new synthetic stucco system. 8. The Complainant was dissatisfied with the appearance of her new exterior stucco and complained to the Respondent. When the parties were unable to resolve their differences regarding the fading and discoloration of the new synthetic integrated color stucco system the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence. 10. The Corrective Work Order provides in pertinent part as follows: THIS CONTRACTOR IS TO REMOVE AND REPLACE ALL AREAS OF STUCCO THAT HAD MIS-MATCHED AREAS IN COLOR BY APPROPRIATE MEANS EXCEPT THE EAST WALL OF THE HOUSE. THIS CONTRACTOR IS TO ALSO ENSURE THAT ANY AREAS REPLACED MATCH ANY AREAS NOT REPLACED AS CLOSE AS POSSIBLE. 11. Credible testimony and evidence established that the Respondent then caused the fading and discolored synthetic exterior stucco on the exterior of the Complainant’s residence to be painted. 12. Credible testimony and evidence established that the Respondent has failed to comply with the terms of the Corrective Work Order issued in this matter. 13. Credible testimony and evidence established that the new synthetic integrated color stucco system installed on the Complainant’s residence by the Respondent has failed and requires proper correction as set forth in the written Corrective Work Order issued in this matter. 14. The Respondent shall comply with the terms of the Corrective Work Order. 15. The credible evidence or record is insufficient and fails to support a finding of a violation by the Respondent of the charged provision of A.R.S. § 32-1154A (13), NAMELY, A.R.S. § 32-1124 (B). 16. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW

1. Credible testimony and evidence, presented at hearing, supported findings which establish violations by the Respondent of the provisions of A.R.S. § 32-1154A(23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154A (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed order

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s Class C-36 License No. 089848 shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. 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 that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. 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 this matter, shall result in the automatic revocation of Respondent’s contractor’s 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. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification.

Done this day, June 7, 2010.

/s/ M. Douglas 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