ALJDEC decisions subject to certification as final

2012A-1259-ROC · Registrar of Contractors · 2012-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 21, 2012, at 8:00 a.m. APPEARANCES: Suzanne and Dean McAlister (hereinafter “Complainants”) appeared through Suzanne McAlister. Jesus Humberto Monreal dba J and M Stucco (hereinafter “J and M”) appeared on his own behalf. 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. J and M is the holder of License No. K-36.214594-D issued by the Registrar of Contractors. 2. This is a residential matter where J and M applied integral custom colored exterior stucco to Complainants’ residence located at 11700 E. 49er Fairway Lane, Tucson, Arizona. 3. Complainants were extremely dissatisfied with J and M’s workmanship and demanded appropriate remedial action. When J and M was unable to resolve its alleged workmanship deficiencies to their satisfaction, Complainants filed a formal complaint against J and M with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), conducted an onsite inspection. Inspector Grochocki issued a written Corrective Work Order on March 30, 2012, directing J and M to perform designated corrective work on Complainants’ exterior stucco. 5. The Corrective Work Order provided, in pertinent part, as follows: License # [K-36.214594-D] issued to J and M Stucco was suspended for lack of bond on March 9, 2012 and cannot do or subcontract the following corrective work until the suspension is lifted.

1) Complaint of: “Stucco cracks”, jobsite found excessive hairline cracks throughout project, at jobsite contractor agreed to correct, contractor to correct by appropriate means. 2) Complaint of: “Stucco bulging”, jobsite did not determine, no action required. 3) Complaint of: “Areas behind cracks sound hollow”, jobsite could not determine, no action required. 4) Complaint of: “Contractor used product not meant for smooth finish”, jobsite did not determine, no action required. 5) Complaint of: “Began to redo finish”, jobsite found within standards, no action required. 6) Complaint of: “Stucco “burned” by over troweling”, jobsite did not determine, no action required. 7) Complaint of: “Edges of windows, walls, and doors messy and coarse”, jobsite did not determine, no action required. 8) Complaint of: “Contractor assured us”, unable to determine from jobsite, no action required. 9) Complaint of [:] “Contractor showed us a nice wall”, unable to determine from jobsite, no action required [.]

6. Inspector Grochocki testified that J and M has posted the required bond and that License No. K-36.214594-D of J and M is now current. Inspector Grochocki stated that J and M could now perform corrective action on Complainants’ residence.[1] 7. Inspector Grochocki testified that he performed a pre-hearing inspection on August 20, 2012, and personally observed that the excessive cracking on the exterior stucco of Complainants’ residence had not been corrected. Inspector Grochocki stated that J and M was not in compliance with the terms of the Corrective Work Order.[2] 8. Inspector Grochocki testified that all of the exterior stucco work that he saw at the jobsite was acceptable with the exception of the excessive stucco cracking.[3] 9. Inspector Grochocki testified that he inspected every item set forth in Complainants’ Complaint. Inspector Grochocki testified that he observed no stucco bulging beyond industry standards. Inspector Grochocki stated that he could not detect any unacceptable hollowness. Inspector Grochocki testified that the smooth finish on the exterior stucco of Complainants’ residence was within acceptable workmanship and industry standards. Inspector Grochocki stated that the stucco finish around Complainants’ windows was within applicable workmanship and industry standards and acceptable.[4] 10. Keith E. Franklin (hereinafter “Mr. Franklin”) testified that he is the owner of Vista Restoration Inc. (License No. B.064058-R) and that Vista Restoration Inc was the general contractor for Complainants’ remodeling construction project.[5] 11. Mr. Franklin testified that he made his first inspection of J and M’s work and informed J and M that he observed unacceptable pits and voids in the exterior stucco which required correction. Mr. Franklin stated that J and M’s representative, Chris Torres, agreed that J and M would take care of the unacceptable pits and voids.[6] 12. Mr. Franklin testified that he went around Complainants’ residence and tapped on the walls and found numerous spots which appeared to be hollow.[7] 13. Mr. Franklin testified that he observed “banding” on the exterior stucco walls and different textures on the exterior stucco walls. Mr. Franklin stated that he observed different shades of the same color on Complainants’ residence. Mr. Franklin testified that he did not find J and M’s exterior stucco application to be “reasonable.”[8] 14. Mr. Franklin testified that the exterior stucco on Complainants’ residence displays excessive cracking. Mr. Franklin stated that he disagreed with Inspector Grochocki’s determination that most of the exterior stucco work performed by J and M was acceptable. Mr. Franklin stated that he believed that J and M would have a very difficult time properly correcting the exterior stucco on Complainants’ residence.[9] 15. John Albert Walker (hereinafter “Mr. Walker”) testified that he has been in the plastering profession since 1980 and that he is the owner of Plastering by Design LLC (License No. C-36.235358-R).[10] Mr. Walker testified that he inspected Complainants’ residence and observed that the underlayment is “telegraphing” through the exterior stucco surface. Mr. Walker observed excessive cracking in the exterior stucco on Complainants’ residence.[11] 16. Mr. Walker stated that he tapped on the walls of Complainants’ residence and noticed numerous hollow spots. Mr. Walker testified that J and M installed a Tyvec plastic moisture barrier over the existing stucco finish on Complainants’ residence. Mr. Walker opined that J and M’s application of the Tyvec plastic moisture barrier created the air pockets between the substrate and the new stucco application. Mr. Walker stated that the air pockets caused the cracking in the stucco.[12] 17. Mr. Walker stated that the “round-cap” nails utilized by J and M to install the lathing for the exterior stucco were approximately 1½ inches too short.[13] 18. Mr. Walker testified that Complainants’ residence is constructed of “RASTRA” insulated concrete forms with an aggregate coating composed of a mixture of concrete and Styrofoam.[14] 19. Mr. Walker testified that the stucco cracking on Complainants’ residence is excessive and unacceptable and that the exterior stucco would continue to crack because of the substrate that the exterior stucco was applied over. Mr. Walker testified that the Tyvec plastic moisture barrier applied by J and M should have been applied with adhesive to prevent air pockets between the moisture barrier and the new exterior stucco finish.[15] 20. Mr. Walker testified that J and M utilized a standard stucco product with a “16/20” sand component and that J and M should have utilized a special order “20/30” sand component that would have provided a smaller aggregate and a smoother finish.[16] 21. Suzanne McAlister (hereinafter “Ms. McAlister”) testified that Complainants’ insurance company agreed to pay to have the exterior of Complainants’ residence re-stuccoed. Complainants contacted J and M for quote for the stucco work. Ms. McAlister stated that J and M’s representative, Chris Torres, repeatedly promised that J and M could apply a new smooth stucco finish equivalent to the smooth stucco finish that was on Complainants’ residence at the time.[17] 22. Ms. McAlister testified that J and M agreed not to apply exterior stucco to Complainants’ residence if temperatures dropped below forty degrees at night. Ms. McAlister stated that on December 7, 2012, the temperature dropped to 27 degrees. Despite the drop in temperature J and M applied the stucco “brown coat” to Complainants’ residence and continued with the exterior stucco application. Complainant testified that there were numerous cracks in the “brown” or base coat and that J and M’s representative, Chris Torres, stated that J and M wanted the cracks in the base coat because the cracking would make the top coat of the stucco smoother.[18] 23. Ms. McAlister stated that J and M continued to apply the exterior stucco product to Complainants’ residence despite the unacceptably low temperatures. Ms. McAlister testified that J and M failed to mix and apply the exterior stucco product in accordance with the manufacturer’s recommendations.[19] 24. Ms. McAlister testified that there are unacceptable color and texture variations throughout the exterior plaster on Complainants’ residence.[20] 25. Ms. McAlister testified that Complainants noticed more and more cracks appearing in the new exterior stucco on their residence and notified J and M of the cracking problems. Ms. McAlister stated that J and M’s representative stated that the exterior finish was within applicable workmanship standards. Ms. McAlister stated that Complainants asked J and M to perform a “pristine” stucco application, not an “OK” stucco application. Ms. McAlister stated that the extensive stucco cracking on Complainants’ residence make it look like a “road map.”[21] 26. Ms. McAlister acknowledged that J and M performed remediation work on Complainants’ residence on or about March 1, 2012. Ms. McAlister stated that J and M performed some stucco work on hollow spots and the stucco cracks on two small walls. Ms. McAlister testified that the quality of J and M’s exterior stucco work was still unacceptable and that she called the general contractor and asked him stop J and M from performing further exterior stucco work and to remove J and M’s scaffolding because the quality of J and M’s exterior stucco work was unacceptable.[22] 27. Ms. McAlister testified that Complainants then filed a formal complaint against J and M with the Registrar of Contractors on March 9, 2012. Ms. McAlister stated that J and M’s employee, Chris Torres, had informed Complainants that he was a partner in J and M when in fact he was an employee who prepared contracts and that he did not actually perform stucco work.[23] 28. Complainants’ request that J and M stop work and leave the jobsite occurred before Complainants filed a complaint against J and M with the Registrar of Contractors. J and M did not attempt to comply with the terms of the Corrective Work Order issued in this matter. 29. Dean McAlister (hereinafter “Mr. McAlister”) testified that there are numerous cracks in the exterior stucco finish on Complainants’ residence and that the troweling work performed by J and M was inconsistent. Mr. McAlister stated that the medium coarse product that J and M utilized in the base coat application on Complainants’ residence was not recommended by the manufacturer for a smooth exterior stucco finish.[24] 30. Chris Torres (hereinafter “Mr. Torres”) testified that he has been a plasterer for thirty years. Mr. Torres stated that he is an employee of J and M. Mr. Torres testified that J and M worked directly for Complainants’ general contractor, Keith Franklin, during the construction project and that J and M applied the exterior stucco on Complainants’ residence as directed by the general contractor.[25] 31. Mr. Torres acknowledged that he did promise that J and M would match the appearance of Complainants’ existing stucco. Mr. Torres asserted that the exterior stucco applied by J and M did match the previous stucco’s appearance. Mr. Torres denied that he had promised Complainants a flawless smooth finish.[26] 32. Mr. Torres acknowledged that Complainants’ exterior stucco had cracks. Mr. Torres testified that he could not explain why Complainants’ exterior stucco had cracked.[27] 33. Mr. Torres testified that the general contractor promised to inform J and M when the temperature was less than 40 degrees and that J and M would not perform exterior stucco work on Complainants’ residence after such notification. Mr. Torres stated that he could not recall J and M applying stucco to the exterior of Complainants’ residence in temperatures of less than 40 degrees.[28] 34. Mr. Torres testified that J and M applied two coats of integral color stucco finish to Complainants’ residence. Mr. Torres stated that J and M normally had a crew of six individuals performing exterior stucco work on Complainants’ residence during the construction project.[29] 35. Administrative notice is taken of J and M’s prior license record as reflected on the Registrar of Contractors’ public website on September 5, 2012. Such prior license record reflects that License No. K-36.214594-D of J and M is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Undisputed credible testimony and evidence established that J and M’s exterior stucco application has excessive cracking. This Tribunal concludes that J and M violated the charged provision of A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108.[30] 4. J and M failed to perform corrective work on Complainants’ residence in accordance with the terms of the Corrective Work Order issued in this matter. This Tribunal concludes that J and M violated the charged provision of A.R.S. § 32-1154(A)(23).[31] 5. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in its work. Although Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the exterior stucco on of their home are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of poor workmanship prior or subsequent to completion of a specified project to bring the final work product up to appropriate industry standards. In this regard, J and M must be given one last reasonable opportunity to complete necessary remedial work. A.R.S. § 32- 1155(A) provides that J and M must warranty its corrective work for a period of two years.[32] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. K-36.214594-D of J and M shall be suspended until the Registrar of Contractors receives and accepts written proof that J and M has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if J and M fully 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 shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that J and M pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by J and M 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 J and M’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with J and M, as defined in A.R.S. § 32-1101(A)(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, September 10, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 8/21/12 Hearing Record (hereinafter “H.R.”) at 8:38-9:30. [2] H.R. at 9:34-10:15. [3] H.R. at 14:35-14:53. [4] H.R. at 15:30-19:58. [5] Administrative notice is taken of Vista Restoration Inc.’s prior license record as reflected on the Registrar of Contractors’ public website on September 6, 2012. Such prior license record reflects that License No. B.064058-R of Vista Restoration Inc. was revoked by the Registrar of Contractors on July 2, 2012, and on August 8, 2012. [6] H.R. at 27:55-28:30. [7] H.R. at 29:15-30:30. [8] H.R. at 31:20-33:00. [9] H.R. at 34:20-39:07. [10] Administrative notice is taken of Plastering by Design LLC’s prior license record as reflected on the Registrar of Contractors’ public website on September 6, 2012. Such prior license record reflects that License No. C-36.235358-R of Plastering by Design LLC is current [11] H.R. at 39:08-42:01. [12] H.R. at 42:02-45:20. [13] H.R. at 48:40-49:59. [14] H.R. at 52:28-53:09. [15] H.R. at 54:53-56:37. [16] H.R. at 57:05-57:49. [17] H.R. at 1:10:25-1:14:03. [18] H.R. at 1:15:01-1:15:47. [19] H.R. at 1:16:24-1:22:10. [20] H.R. at 1:19:43-1:20:01. [21] H.R. at 1:22:12-1:25:30. [22] H.R. at 1:31:43-1:32:48. [23] H.R. at 1:34:20-135:19. [24] H.R. at 1:43:27-1:50:50.. [25] H.R. at 1:53:59-1:57:47. [26] H.R. at 2:21:20-2:22:20. [27] H.R. at 2:23:23-2:24:10. [28] H.R. at 2:28:00-2:30:18. [29] H.R. at 2:31:50-2:32:38. [30] A.A.C. R4-9-108 provides as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[31] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. [32] A.R.S. § 32-1155(A) provides as follows: Upon the filing of a written complaint with the registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act that is cause for suspension or revocation of a license, the registrar after investigation may issue a citation directing the licensee, within ten days after service of the citation upon the licensee, to appear by filing with the registrar the licensee's written answer to the citation and complaint showing cause, if any, why the licensee's license should not be suspended or revoked. Service of citation upon the licensee shall be fully effected by personal service or by mailing a true copy thereof, together with a true copy of the complaint, by registered mail in a sealed envelope with postage prepaid and addressed to the licensee at the licensee's latest address of record in the registrar's office. Service of the citation and complaint shall be complete at the time of personal service or five days after deposit in the mail. The two year period prescribed by this subsection shall commence on the earlier of the close of escrow or actual occupancy for new home or other new building construction and otherwise shall commence on completion of the specific project.

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