ALJDEC - Licensing
2023A-12876-CHC-ROC · Registrar of Contractors · 2024-07-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Hugh Casiano,
COMPLAINANT,
v.
Tapatillo Plastering, LLC
License No. ROC 342030,
RESPONDENT.
No. 2023A-12876-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 17, 2024
APPEARANCES: Rafaella P. Safarian, Esq. and William M. Fischbach, Esq. represented Complainant Hugh Casiano. Respondent Tapatillo Plastering, LLC failed to appear. Arizona Registrar of Contractors Investigator Mark Nipp appeared as a witness. John Birk, Marc Tishuck, and Oscar Uribe appeared as witnesses.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice taken of Agency Record; Exhibits C, D, E, and O.
FINDINGS OF FACT
Tapatillo Plastering, LLC (“Respondent”) is the holder of License Number 342030 issued by the Arizona Registrar of Contractors (“Registrar”).
Hugh Casiano (“Complainant”) contracted with general contractor, Contractors Incorporated/Birk Development, LLC, to perform remodeling work at a home owned by Complainant. On or about May 25, 2023, Contractors Incorporated/Birk Development, LLC contracted with Respondent for Respondent to perform the stucco work to the home. The total contract price for Respondent’s scope of work was $66,140.00, inclusive of a June 14, 2023 change order. Complainant has paid Respondent a total of $61,972.00
On or about November 7, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to Respondent’s scope of work.
The Registrar assigned the Complaint to Investigator Mark Nipp. After a December 21, 2023 Jobsite Inspection, at which both parties were present, Investigator Nipp issued a Written Directive to Respondent dated December 22, 2023, that provided as follows:
After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 17, 2024.
*Note* Additional time was added to the due date to accommodate multiple upcoming holidays.
You are directed to remedy the following violations by the appropriate means:
Compliance Item #1: incorrect/incomplete stucco work
Investigator’s Observation: Verified
I saw there was stucco residue on the pavers at the base of the exterior walls. This condition was present sporadically throughout the entire residence.
. . .
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 1-16
Compliance Item #3: Tapatillo incorrectly removed globs of stucco around the window and window frames of the house which heavily scratched and damaged the windows and window frames.
Investigator’s Observation: Verified
Both parties agreed that the Respondent cleaned the outside of the windows and window frames at the request of the General Contractor.
The Complainant explained that all the Trulite windows were new and recently installed for this remodel project. The Complainant further explained that the windows had been washed one other time; about three months prior to the Respondent. However, the scratches were noticed immediately after the Respondent completed washing the windows.
The Respondent stated he used “Goo Gone”, microfiber towels, and a razor blade to clean the windows and window frames.
I saw that all windows frames had some discoloration consistent with scrubbing.
One window frame had obvious razor blade scratches (P36) which the Respondent stated he did.
I saw that all of the windows had scratches in an arced pattern that appeared to be consistent with scrubbing and the use of a razor blade. I also noted that there were scratches on the inside of the windows as well.
I located the manufacturer’s website (https://www.trulite.com/) and found the recommended cleaning instructions. Those cleaning instructions were uploaded into the ROC’s complaint file under the following file name (20231222_GG_004_2015-02-23_Cleaning_Instructions_Glass_2023 12876)
I reviewed the manufacturer’s cleaning instructions and noted the following:
* DO NOT USE RAZOR BLADES OR ANY OTHER METAL TOOL TO CLEAN GLASS!
* The most common form of glass damage involves the use of metal scraping tools during the cleaning process. Metal tools, scrapers, razor blades, steel wool or similar materials should never be used a general cleaning tool. For very stubborn stains it is recognized that use of such tools may be the last resort, however, Trulite cannot be held responsible for any damage when these tools are used. Even though glass is very hard, it can be scratched by metal implements. Scratches that occur during construction or the cleaning process are not the responsibility of the glass manufacturer or fabricator.
* Concrete splatter is common on the ground floor of high-rise buildings. If the concrete is allowed to dry, the glass will most likely have to be replaced. Immediate flooding of the glass surface with water may wash away fresh concrete. Don’t rub the concrete off the glass; scratching of the glass surface will almost always occur if you do.
* Low E Coatings – Vacuum coated (MSVD) Low E products may be very sensitive to any type of solvent or strong chemical. It is critical to use only the recommended glass cleaning materials of mild soap or detergent mixed with water. Never use commercial glass cleaning agents that contain alcohol, petroleum-based solvents, fluorine-containing compounds, vinegar or ammonia. These materials can damage the glass, the insulating unit sealants and the Low E coating.
I located the manufacturer’s website for “Goo Gone” (https://googone.com/) and found the listed ingredients for the ‘original’ formula. Those ingredients were uploaded into the ROC’s complaint file under the following file name
(20231222_goo-gone-goo-gone-ingredients_2023-12876). I noted that four (4) of the six (6) ingredients are listed as solvents.
Based on the Respondent’s admission of using Goo Gone and razor blades, it is more likely than not that the Respondent scratched the exterior of the windows when he cleaned them.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 24-36
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item #2: defective work on pavers around the house
Investigator’s Observation: Not Verified - Insufficient Evidence
The Complainant explained that there was an area in the front driveway that had numerous stains on the newly installed interlocking pavers.
The Respondent stated he had the area covered in plastic and there were multiple other trades working at the same time.
I saw the entire area in front of the single garage door to the curb was dotted with various colors of stains. There is Insufficient Evidence to determine who caused which stains.
No further action is required.
Reference Picture(s) 17-23
All errors in original.
The deadline for compliance with the Written Directive was extended as the parties were working together and Complainant wanted to file an insurance claim regarding the windows. Ultimately, Investigator Nipp issued an official extension of the Written Directive on March 13, 2024, extending the deadline for compliance until April 2, 2024.
Investigator Nipp conducted a Compliance Jobsite Inspection on April 23, 2024. Respondent did not attend the Compliance Jobsite Inspection. Investigator Nipp’s Compliance Jobsite Inspection Notes indicate the following: “There was no change in the condition of Compliance Item #1 and #3 pursuant to the Written Directive dated 03/13/2024. The Respondent has not complied with the Registrar’s Written Directive.”
Thereafter, Investigator Nipp forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).
The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.
The hearing of this matter was scheduled to convene on July 17, 2024, at 1:00 p.m. On the date and at the time set for hearing, Complainant appeared, represented by counsel. Investigator Nipp was also present. Respondent did not appear.
On June 3, 2024, the Registrar issued the Notice of Hearing advising the parties of the hearing date and time, and that the Office of Administrative Hearings would issue a Google Meet link for participation in the hearing. The Notice of Hearing was sent to Respondent’s mailing and email addresses of record with the Registrar.
Also, on June 3, 2024, the Tribunal issued to the parties an Order Setting Hearing Via Google Meet. That Order contained the Google Meet link to join the hearing by video or phone. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.
Investigator Nipp testified consistently with his findings contained in the Written Directive and the Compliance Jobsite Inspection Notes. Investigator Nipp referenced the photographs taken during the Jobsite Inspection to illustrate the deficiencies in Respondent’s workmanship.
Regarding Complaint Item #2: defective work on pavers around the house, Investigator Nipp explained that he did not verify this item because Complainant attempted to clean whatever debris had been on the pavers. Consequently, he could not verify whether it was stucco because there was no texture to the material at that point, and he could not identify the material that caused the staining, as all that remained was a color stain.
Complainant testified that he owns high-end rental properties. Complainant completely renovated this particular property. Due to the condition of the windows caused by the stucco and the damage caused by Respondent’s improper cleaning of the windows and frames, Complainant could not rent the property, resulting in a loss of approximately $15,000.00 to $20,000.00 per month in rental income. Complainant was compelled to move into the home and rent his residence for a much lesser amount, in order to cover some of the loss.
Complainant testified that he contracted for Respondent to install synthetic stucco which is three times more expensive than standard stucco because it negates the need for painting for approximately ten years. Complainant explained that when synthetic stucco dries, its strong bonding does not allow for cracking. However, when it bonds to pavers and cures, it is impossible to clean. Complainant credibly testified that prior to Respondent’s installation of the stucco, the pavers were clean, and that Complainant cleaned the pavers himself between the trades, and therefore, he knew that the pavers were clean prior to Respondent performing its work. Further, the color of the staining on the pavers matches the color of the stucco. The Administrative Law Judge finds, based upon the credible testimony provided by Complainant, that Respondent’s poor workmanship caused the staining to the pavers.
Complainant testified that he is an expert in the field of installation of tinting products attached to glass. Complainant testified that Respondent continued to damage all of the windows notwithstanding the noticeable damage that was caused with the use of razor blades and Goo Gone. Respondent should have taken notice immediately, upon the attempted cleaning of the first window, that the method used was improper and causing further damage. Complainant testified that to replace the window glass will cost approximately $80,000.00, and the total cost of repair will exceed $100,000.00 including the window frames and stucco.
Marc Tishuck, Director of Contractors Incorporated/Birk Development, LLC, testified that Respondent utilized synthetic stucco with a paint sprayer, and “sprayed everything” including the front door, fascia, and windows, and that the fascia had just been painted.
Administrative notice is taken of Respondent’s prior License record on July 26, 2024. Such prior License record reflects that Respondent’s License Number 342030 was first issued on December 2, 2022, and is active. Such prior License record also reflects that there are two open complaints, including the instant Complaint, no resolved/settled complaints, and no discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The credible, probative, and substantial evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Moreover, the evidence of record established that Respondent either failed to realize the harm caused by its improper attempts at cleaning the windows, which in and of itself is unacceptable and not likely given the magnitude of the damage, or continued to knowingly cause damage to the windows and frames notwithstanding such. Either way, Respondent’s actions in this case are particularly egregious. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
The evidence established that Respondent did not complete the corrective work following the issuance of the Written Directive and that valid justification for such failure did not exist. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Number 342030 for a period of fourteen (14) days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’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. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, July 29, 2024.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Hugh Casiano
P.O .Box 13422
Scottsdale, AZ 85267
[email redacted]
William Morris Fischbach
Tiffany & Bosco
2525 E. Camelback Rd. 7th Floor
Phoenix, AZ 85016
[email redacted]
[email redacted]
[email redacted]
Tapatillo Plastering, LLC
3212 W. Granada Road
Phoenix, AZ 85009
[email redacted]
Mark Nipp
Investigator
[email redacted]
By: OAH Staff