ALJDEC

97F-2332-ROC · Registrar of Contractors · 1998-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 1998 APPEARANCES: Richard L. Cobb, Esq., on behalf of the Complainants No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT In approximately December 1995, the Complainant and Respondent entered a contract whereby the Respondent would build the Complainants’ residence in the Desert Mountain area of Scottsdale, Arizona. Some problems had arisen between the parties even prior to the Complainants’ moving into the home. An initial complaint was filed with the Registrar of Contractors (Registrar), in March of 1997. The Complainants moved into the home in July of 1997. Problems relating to aspects of the construction were noted and the Complainants filed additional complaints with the Registrar in July and November of 1997. Some of the items referenced in the latter complaints are no longer at issue and these will not constitute part of this Recommended Order. On September 4, 1997 and February 3, 1998, Corrective Work Orders (CWO) were issued by Inspector Dick North of the Registrar’s Office. A number of items were specified for remedial work and the Respondent did such work over a period from October of 1997 through May of 1998. The CWO’s required the work to be done in 15 and 20 days respectively. For the purpose of this hearing the CWO of February 3, 1998 is relevant. The pertinent items which were to be corrected by the Respondent include correction of areas of stucco failure on the parapet walls. The Respondent was also required to provide a missing cabinet drawer. The parapet wall as initially constructed did not include a detail of approximately four inches which was to finish off the top edge of the wall. This was added and resulted in distinct cracking of the stucco in areas where the detail and the rest of the wall meet. Additionally, the stucco on the detail does not match the rest of the wall in texture or smoothness, and webbing shows through in some areas (Exhibits 1 thorough 5). An electrical outlet is recessed at the junction of the back and seat portion of a stucco observation deck bench. The outlet is positioned in such a way that water can collect in the area and possibly leak into the outlet with the resultant safety hazards (Exhibit 6). An electrical outlet on an alcove wall and a wall sconce with a light fixture show that water is leaking down the interior of the wall and through the outlet and light fixture (Exhibits 7 and 8). According to the plans, a waterproof liner (Bituthene) was to have been utilized under the stucco at the top of the wall. Instead of this, 15 pound roofing paper was used. The roofing paper is inferior to and significantly cheaper than the Bituthene and its use may be partially responsible for the leakage inside the wall. The Bituthene and roofing paper were inspected during the hearing but were not retained as exhibits. The Bituthene needs to be installed according to plan. Water leaking through the parapet wall is causing chipping and decomposition of parts of the stem wall (Exhibit 9). The top of columns at the parapet wall are flat or recessed and retain water. This is causing discoloration from efflorescence (Exhibits 10 through 12). The tops of some of the columns slant toward the parapet wall resulting in improper drainage. Water collects at the 90 degree junction of the top of the column and the side of the wall resulting in a greater likelihood of leaks and related damages (Exhibit 13). The stem wall portion of a masonry wall in the parking area was covered with a rubberized product and then with stucco. The stucco does not adhere to this product and it is delaminating. There is a crack along the entire junction of the stem wall and the rest of the masonry wall (Exhibits 14 and 15). Water leaks through the wall are coming into the interior of the home at various windows causing efflorescence and other damage (Exhibit 16). The corrective work which was done on the parapet wall is unsatisfactory. The caulking of the wall is superficial and does not address problems referenced in the above findings. The aesthetics of the repair are unacceptable. The color and texture of the caulk do not match the stucco (Exhibits 17through 21). An outside block wall has insufficient stucco on it resulting in the outline of individual blocks showing through (Exhibit 22). There are discernible demarcation lines in the stucco on some of the columns. The evidence indicates that portions of the columns were added some time after the original column (Exhibit 23). The stucco detail at an Arcadia door frame is unacceptable. Pieces of tape are under the stucco and where the tape was removed some of the stucco was also removed resulting in chipped areas (Exhibits 24 and 25). The stucco on a masonry wall which meets a frame wall of the house is cracking at the junction point (Exhibit 26). The underside of overhanging portions of the exterior house walls at the level of the stem wall have voids and exposed wood (Exhibits 27 through 29). The area around a number of French drains on the roof of the home were not depressed two inches as specified on the plan. The flange for the drains is above the level of the roof resulting in water collecting in those areas from where it should be draining (Exhibit 30). The study cabinet drawer has not been provided as required by the CWO (Exhibits 31 and 32). CONCLUSIONS OF LAW The Citation and Complaint allege violations of A.R.S. §32- 1154(A)(3)/A.A.C. R4-9-108, poor workmanship, (A)(7), wrongful or fraudulent act, and (A)(23), failure to take appropriate corrective action. Some of the evidence addresses conditions which were not specifically set out in the original complaints. However, the evidence shows that the Respondent either knew of these conditions or should have known of those conditions. The conditions are included in the above findings of fact and are considered in the context of A.A.C R4-9-108 and A.R.S. §32-1154(A)(7). The evidence clearly shows no satisfactory corrective action was taken with regard to the parapet wall and the cabinet drawer which was to be provided. Based on this, there has been a violation of A.R.S. §32-1154(A)(23). The evidence as listed in the findings also shows that there are multiple defects in workmanship which constitute violations of A.R.S. §32- 1154(A)(3)/A.A.C. R4-9-108. The nature of some of these defects and the potential safety hazards raise serious questions regarding the Respondent’s supervision in these areas. There is no specific evidence of all the elements of fraud. However, the use of roofing paper rather than Bituthene is clearly a wrongful act within the meaning of the statute and a violation of (A)(7). RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on items 8 through 24, as set forth in the Findings of Fact above; It is further recommended that if the Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place; It is further recommended, in addition to the foregoing license suspension, if any, that the Respondent’s Class B license be placed on probation for a period of ninety (90) days. This additional penalty shall commence on the effective date of the Registrar’s Order or the date on which notice of compliance with the terms of the Order is filed with the Registrar, whichever is later. Done this day, September 22, 1998.,

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of September, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

-----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826