ALJDEC decisions subject to certification as final

2012A-1996-ROC · Registrar of Contractors · 2012-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2012, at 1:00 p.m. APPEARANCES: Complainant Chuck Sakys appeared on his own and Complainant Susan Sakys’s behalf; Respondent Jason Russell Fowler and Russell George Fowler dba J R Fowler Enterprises appeared through Russell George Fowler, its qualifying party and partner. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.177606-R to Jason Russell Fowler and Russell George Fowler dba J R Fowler Enterprises (“Respondent”). 2. Chuck and Susan Sakys (“Complainants”) filed a Complaint with the Registrar regarding discolorations in the stucco and other alleged deficiencies in the house that Respondent had constructed at 3450 Enduro Drive, Lake Havasu City, Arizona. 3. The Registrar assigned the Complaint to its inspector, Cliff Corlett, for investigation. On May 4, 2012, Inspector Corlett issued a Corrective Work Order (“CWO”) that required Respondent within fifteen calendar days to repair the stucco discoloration, in relevant part as follows: Complaint issue # 1. Stucco discoloration. Registrar of Contractors Rule (ROC)*****The stucco contractor stated at the onsite inspection that he had returned to the residence and had fog coated numerous areas on the structure in an attempt to achieve a more uniform color. In this Inspector[’]s opinion that would be an admission by the contractor(s) that the stucco appearance was below acceptable standards, and still is. Respondent should determine cause and correct by appropriate methods the stucco discoloration.

4. After Complainants requested a hearing, the Registrar issued a Citation and Complaint against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(23). 5. Respondent’s qualifying party and officer, Russell G. Fowler, filed a timely written answer to the Citation and Complaint denying any statutory violations. Respondent affirmatively alleged that it had hired Blue Diamond Lath and Plaster Inc., License No. K-36.163362-D (“Blue Diamond”) to apply Allegro II Cement Coating (“Allegro”)[1] to Complainants’ entire house. Respondent attached to its written answer copies of Blue Diamond’s Invoice No. 425 dated May 24, 2012, in the amount of $1,800.00 and Invoice No. 7916 from Buxton Drywall Inc., License No. K-10.142321-D, dated June 5, 2012, in the amount of $100.00 to repaint “where stucco guy’s accidentally removed paint.” 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. A videoconference hearing was held on November 14, 2012, from the Registrar’s office in Lake Havasu City. Inspector Corlett testified. Complainant Chuck Sakys testified and submitted five exhibits. Respondent presented the testimony of Mr. Fowler and Stephen Hamilton, Blue Diamond’s qualifying party and officer, and submitted six exhibits. / / / / Hearing Evidence 8. Inspector Corlett testified that he performed a prehearing jobsite inspection on November 14, 2012. Inspector Corlett testified that he could see that Respondent had returned to the property and performed considerable recoating of the stucco. Inspector Corlett testified that Respondent had done a “fairly nice job” in performing its corrective work. 9. Inspector Corlett testified, however, that Respondent’s repairs were not complete because in certain areas, he could see cut-off lines where the coating stopped and that the coating should have gone further. Inspector Corlett identified the location of the cutoff lines as follows: (1) The back of the RV garage in the corner; (2) The wall above the sliding glass door from the dining room; (3) The area above the window on the front porch; and (4) The front porch eave. 10. Complainants submitted photographs of other alleged excessive color variations on the wall above the sliding glass door from the master bedroom, the southeast column on the rear patio, and the south side of the RV garage. Inspector Corlett testified that he did not notice these areas of alleged excessive color variation at the prehearing jobsite inspection. 11. Mr. Hamilton acknowledged that the appearance of the stucco that was initially applied to Complainants’ house was poor. Mr. Hamilton testified that after the CWO was issued, Blue Diamond applied the Allegro to Complainants’ entire house. Mr. Hamilton testified that because it was impossible to stop spraying a product in a straight line, the color variations that Inspector Corlett observed were not attributable to Blue Diamond having prematurely terminated its application of the Allegro. 12. Mr. Hamilton has worked in stucco for 30 years. Mr. Hamilton testified that when Blue Diamond finished its application of the Allegro, Complainants’ house looked “perfect.” Mr. Hamilton testified that the lines that Inspector Corlett noted were caused by water rinsing dirt off the roof onto the Allegro. Mr. Hamilton testified that the only way to avoid variations in the color of stucco is to paint it. 13. Mr. Fowler testified and Respondent submitted photographs that showed that Blue Diamond had masked all the windows, doors, and other openings at Complainants’ house before it applied the Allegro. Mr. Fowler testified that when Blue Diamond pulled off the tape, it pulled some paint off the trim on Complainants’ house and Respondent had to hire a painter to correct the paint. 14. Mr. Hamilton testified that because Complainants’ house has no gutters, rain and dirt will cause the Allegro to appear as though it has color variations. Mr. Hamilton testified that many contractors recommend that homeowners install gutters to avoid stucco discoloration. Mr. Hamilton testified that the variations in the color of the Allegro on Complainants’ house would disappear over time. 15. Inspector Corlett agreed that unless stucco is painted, it will not have an absolutely consistent color. Inspector Corlett testified that he has been employed as the Registrar’s inspector for 14 years and before that, was a licensed general contractor in California, where he built many stucco houses. Inspector Corlett testified that in his opinion, the few areas he identified in the Allegro on Complainants’ house had excessive color variation. 16. Inspector Corlett testified that at the prehearing jobsite inspection, Complainants pointed out stucco overspray and footprints on the patio. 17. Mr. Fowler testified that Respondent would have repaired the overspray and footprints if these deficiencies had been called to his attention. 18. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on November 30, 2012, Respondent’s License No. B.177606-R was current, one complaint was closed as resolved/settled/withdrawn, and one complaint was pending against the license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to resolve this dispute.[2] 2. Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 4. Complainants established that Respondent applied stucco to their house in an unprofessional and not workmanlike manner, resulting in excessive color variations in certain areas in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[6] 5. Because Complainants established that four small areas still have excessive variation in the color of the Allegro, Complainants established that Respondent failed to fully comply with the Registrar’s written directive, in violation of A.R.S. § 32- 1154(A)(23).[7] 6. Respondent established that it performed substantial repairs to comply with the CWO, even though Complainants established at the hearing that its efforts fell short. Under the circumstances, and in light of Respondent’s good license history, the Registrar should exercise its discretion under A.R.S. § 32-1154(D) not to impose a civil penalty against Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Respondent Jason Russell Fowler and Russell George Fowler dba J R Fowler Enterprises’ License No. B.177606-R be suspended until it repairs the four areas of the Allegro with excessive color variations identified in Finding of Fact No. 9 and the overspray identified in Finding of Fact No. 16. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent has submitted written proof, and the Registrar accepts such proof, that Respondent has repaired in a professional and workmanlike manner the four areas the Allegro with excessive color variations identified in Finding of Fact No. 9 and the overspray identified in Finding of Fact No. 16, Respondent’s license not be suspended but, instead, Complainants Chuck and Susan Sakys’s Complaint in Case No. 2012-1996 be closed. 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, November 30, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent attached to its written answer a product information sheet for Allegro that stated that it “provides a cost-effective, durable and long-lasting colored coating that can be applied to portland cement surfaces such as” stucco, concrete block, concrete masonry unit, and precast concrete. [2] See A.R.S. §§ 32-1151 to 32-1169. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [7] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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