ALJDEC

97F-2655-ROC · Registrar of Contractors · 1998-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 1998

APPEARANCES: Complainant was represented by her attorney Frederick E. Davidson; Respondent was represented by attorney Dennis I. Wilenchik.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This case involves three areas of her home that Jane Niven (“Complainant”) feels should be corrected by the builder, Monterey Homes. (“Respondent”). The complaint originally noted thirteen items, but by the time of the hearing, all but three items -- exterior paint and stucco, air handler, and hardwood floor -- had been repaired to Complainant’s satisfaction. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT Stucco Cracking and Paint Peeling 1. Respondent built Complainant’s home in 1996. Shortly thereafter, Complainant noticed thin random cracking of the smooth stucco exterior in several areas around the outside of the home. She also noticed that, particularly after rain, the exterior paint bubbled and eventually peeled off in various areas around the outside of the house. She immediately brought this to Respondent’s attention. Between July 1996 and January 1998, Respondent has made several attempts to correct these ongoing problems by patching the cracks and repainting the home. 2. It is significant to note that Complainant’s complaint does not mention cracking stucco, only the bubbling paint. 3. Complainant hired an independent inspector, Philip S. Coppola of High-Point Rendel (now known as Pinnacle One), who viewed the home in March 1997. Mr. Coppola has 15 years experience as a superintendent for a general contractor and 5 years experience as a forensic evaluator for Pinnacle One. He observed and commented on the peeling paint. His written conclusion was that moisture was getting behind the paint or wall somehow and that the cause of this should be explored and corrected. Mr. Coppola’s report states that it is likely that the moisture is getting to the wall from the parapet and roof. At the hearing, Mr. Coppola testified that he believed the moisture was in the wall cavity and was potentially harmful to the structure. He also opined at the hearing, for the first time, that the stucco cracks were too numerous to be acceptable. His written report from March 1997, which is the basis for Complainant’s complaint, does not mention cracks in the stucco. Respondent did not seek to limit the evidence to the peeling paint problem. Mr. Coppola sees the stucco cracks and peeling paint as a symptom of a larger problem -- that of moisture in the wall cavities. The evidence submitted at hearing, however, does not support the “wall cavity” theory. 4. Registrar of Contractors Inspector Dick North performed inspections of the property on May 30, 1997, and again on December 23, 1997. Regarding the exterior of Complainant’s home, in May 1997, Mr. North confirmed the areas of paint bubbling. He characterized the exterior paint problems as “cosmetic items” and agreed to let Respondent correct those as part of the one year scheduled repair of the home. In December, he observed areas on the exterior walls that were unacceptable either because the paint was bubbling and peeling or because repairs to cracks and paint were not properly done or were failing. Mr. North testified that there were 8 to 15 areas of bubbling and that they were unacceptable. The number of areas was a guess on his part but it confirms the other evidence that shows that the home is not “riddled” with bubbles. Rather, the evidence shows that there are some areas of bubbling on the large exterior of Complainant’s large home. 5. Chris Graham, Respondent’s Vice President for Construction, testified that Respondent has tried to correct each area of paint bubbling and has had subcontractors investigate the possible causes of the problem. Mr. Graham has 14 years of experience in the home construction industry and has concluded that the problems are isolated areas and are not a symptom of some structural defect or overall problem. None of his investigations led to any other conclusion. He disagreed with Mr. Coppola that there were signs of water in the wall cavity. He admitted that the scope of the bubbling problem was somewhat larger than usual, but still saw no evidence that indicated anything other than problem areas here and there on the walls. This ALJ is satisfied that Respondent has done some investigation of the problem, albeit slowly. This ALJ also make note of Mr. Graham’s assurance that Respondent will continue to investigate the paint bubbling that persists. 6. At the hearing, Respondent conceded that moisture was present, but asserted that the moisture was not in the walls; rather, it was between the paint and the stucco. Also, Respondent concluded that this was not a symptomatic problem, but was occurring only in certain isolated areas. Thus, Respondent’s method of correction has been to “patch” the affected areas. Respondent admitted that there is more testing it can do to determine the cause of the moisture and the paint’s lack of adhesion in those areas. Although Respondent has not proceeded with great haste to get at the root of the problem, the record does not support Complainant’s contention that Respondent was indifferent to or “cavalier” toward Complainant. 7. Respondent submitted an opinion letter from Jesse Wyatt, a structural engineer who opined that the cracking and peeling on the exterior of Complainant’s home was not excessive and was a normal occurrence for homes in the desert southwest. (Exhibit D.) This ALJ places little weight on this opinion for several reasons. First, Mr. Wyatt was not present at the hearing and the record contains no evidence regarding Mr. Wyatt’s credentials and experience in this field. Second, the letter, if meant to be an inspection report, is poorly done. For example, Mr. Wyatt does not state the date of his observations in the letter (the letter is mis-dated, it should be “January 5, 1998”). Finally, the letter is very conclusory, giving little explanation of its conclusions. 8. The evidence does not support Complainant’s contention that there is a chronic, potentially devastating problem with the exterior paint and stucco. The evidence, especially the photographic evidence, shows isolated cracking and paint bubbling, as well as stucco crack repairs that have not been successful. The record does not show that the cracking stucco is a widespread problem or that paint bubbling is recurring in the same areas. Clearly, the paint is separating from the stucco and peeling in several areas, but the evidence does not show that stucco is coming off Complainant’s home, nor was that part of Complainant’s original complaint. Hardwood Floor 9. Complainant complained about the finish of her hardwood floor. Mr. North found, during his May 1997 inspection, that the floor was acceptable because the scuffing was visible only from certain angles and in certain lighting. Respondent was not required to work on the floor in the CWO. However, the floor subcontractor, Arizona Hardwood Floor Supply, Inc., did a “courtesy buffing” after the CWO to please Complainant. (Exhibit B.) At the hearing, Mr. North testified that in December he observed an area of the floor that does not meet industry standards. There was also evidence, however, that the floor subcontractor had not yet finished its work. In any event, Respondent has had no part in the “courtesy buffing” that is being performed. That agreement has been strictly between the subcontractor and Complainant. Air Handler 10. Complainant says that the air conditioning in her home is too noisy. Respondent has had the air handler tested and insulated for sound. Mr. North found that the unit was not excessively noisy and was the proper size. He did not order any corrective work on the air handler. Mr. Coppola speculated that there could be some sort of restriction in the ducts that is causing the noisiness of the air, but he had not tested for that. His testimony is found to be too speculative to rely on. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). 2. The evidence, particularly Mr. North’s December 1997 observations and testimony that stucco repairs were rough and easily visible and needed to be redone and that areas of paint were bubbling improperly, supports a conclusion that Respondent has violated A.R.S. § 32-1154(A)(7), (23), and (3), namely Arizona Administrative Code (A.A.C.) R4-9-108, because Respondent’s repairs to the stucco cracks and paint in certain areas do not meet industry standards. Also, there is an atypical problem with the paint in certain areas on Complainant’s home that Respondent needs to continue to explore until a reasonable explanation is obtained and a more permanent correction discovered. 3. The evidence does not support a finding of any violations by Respondent with respect to the hardwood floor or the air handler. 4. The evidence also does not support Complainant’s theory that the problem is any greater than moisture getting behind the paint in certain isolated areas and causing the paint to peel. There was no evidence presented that stucco is peeling off the house, only paint in certain areas. Further, the evidence is silent as to whether paint is re-peeling in the same areas, except with respect to the area on the outside of the low wall surrounding the air conditioner. That was an area conceded by Respondent to be a recurring problem. 5. An appropriate remedy in this matter is to allow Respondent an opportunity to correct the deficient stucco repairs and painting, and, if the repairs are workmanlike, close the complaint.

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B license 066590 be suspended beginning the effective date of the Registrar’s Order until Respondent has repaired or caused to be repaired in a workmanlike manner the failing stucco repairs and bubbling paint that exists as of the date of the Registrar’s Order. IT IS FURTHER RECOMMENDED that if Respondent completes the above corrections on or before the effective date of the Registrar’s Order, the license suspension shall not take place and complaint 97-2655 shall be closed.

Done this 13th day of February 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of January 1998, to:

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

By ___________________________ -----------------------

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