ALJDEC

97F-H0118-ROC · Registrar of Contractors · 1998-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 12, 1998

APPEARANCES: James Smerdell appeared on behalf of the Complainant. Mike Bell appeared on behalf of the Respondent.

ADMINISTRATIVE LAW JUDGE: Casey J. Newcomb _____________________________________________________________________

On January 12, 1998, a hearing was held to determine if the Respondent violated A.R.S. §32-1154(A). James Smerdell appeared on behalf of the Complainant. Mike Bell appeared on behalf of the Respondent. Testimony and evidence were presented. However, at the conclusion of the hearing, the parties reached an agreement in this matter. After a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision and Order are made.

FINDINGS OF FACT

1. In late 1994, the Complainant, a General Contractor, and the Respondent, a subcontractor, entered into an agreement for the Respondent to stucco a home (the “Home”) built by the Complainant at 4218 Mercer, Bullhead City, Arizona.

2. James Smerdell is the Complainant’s Qualifying Partner. Mike Bell is the Respondent’s Qualifying Partner. James Smerdell stated that this is the third formal complaint filed with the Register of Contractors concerning the Respondent and this Home. See the Complainant’s Complaint.

3. James Smerdell testified that upon the completion of the Home, the Homeowners complained that the stucco was cracking. The Respondent repaired these cracks.

4. The Homeowners also complained that the Home leaked when it rained. The Complainant corrected this problem by sealing the Home with a product called Rainguard Sealer.

5. The Respondent testified that he repaired the stucco by “patching the cracks.” However, the Respondent conceded that the patches had a different color than the surrounding wall.

6. Jim Boyette is the Inspector for the Registrar of Contractors (the “ROC”). Inspector Boyette testified that it is common in this part of the country for stucco walls to crack due to the desert conditions. However, Mr. Boyette testified that this Home cracked “more than usual.”

7. Inspector Boyette testified that the normal procedure for correcting this problem is to patch over the cracks. Inspector Boyette testified that the patching job performed by the Respondent was within industry standards.

8. Inspector Boyette testified that after patching the cracks in the stucco, it is a common practice within the industry to fog coat the walls to make the patches less noticeable.

9. Inspector Boyette testified that fog coating the Home’s walls should satisfactorily make the patches less noticeable. However, Inspector Boyette and Mr. Bell were concerned that the fog coating may cause discolorization where the Complainant had applied the Rainguard Sealer.

10. James Smerdell testified that the manufacturer of Rainguard Sealer assured him that the Rainguard Sealer should not affect the fogging process.

11. James Smerdell testified that there is a another process to conceal the patching over the cracks called “recolor coating.” This process is more expensive than fog coating but may not be as effective in certain circumstances.

12. James Smerdell testified that he does not want the Respondent’s license suspended or revoked. He only wants to resolve this matter so that the Homeowner will be satisfied.

13. The parties agreed to resolve this matter as follows:

A. The Respondent shall fog coat a wall or portion of a wall at the Home to see if the Rainguard Sealer creates any discolorization. If the Rainguard Sealer does not cause a problem with the fogging process, then the Respondent shall fog coat the entire Home.

B. If the fog coating process (on one wall) proves to be unsuccessful, then the Respondent shall “recolor coat” a wall or portion of a wall to see if the Rainguard Sealer creates any discolorization. If the Rainguard Sealer does not cause a problem with the “recolor coating” process, then the Respondent shall “recolor coat” the entire Home.

C. The Complainant and the Homeowner shall be present when the wall of the Home is tested. The Complainant and the Homeowner shall determine if the fog coat or “recolor coat” testing is acceptable. The Complainant and the Homeowner shall have a 24 hour notification period prior to the testing of the wall. If the Homeowner refuses or fails to cooperate in testing the Home, then the Respondent shall not be bound by the terms of this agreement.

D. If the testing of the fog coating process or the “recolor coating” process proves to be unsuccessful, then the Complainant or the Homeowner will have to pursue a damages remedy in another forum.

CONCLUSIONS OF LAW

1. Public Policy favors the settlement of disputes. Therefore, the undersigned Administrative Law Judge accepts the settlement agreement set forth in Findings of Fact #13. The undersigned Administrative Law Judge further finds that this settlement agreement is both fair and reasonable under the circumstances.

2. The Respondent shall commence the fog coating test at the Home within days of the effective date of this Order (thirty-five days after the date of mailing by the Registrar). Assuming that the Rainguard Sealer does not cause a problem with the fogging or “recolor coating” process, then the Respondent shall complete the project within 7 days.

3. The settlement agreement reached and submitted during the hearing in this matter warrants the termination of the instant hearing and the dismissal of the Complainant’s Petition.

RECOMMENDED DECISION AND ORDER

Based upon the foregoing, it is recommended that the Director accept and approve the aforementioned settlement agreement between the parties. It is further recommended that the Complainant’s Petition be dismissed and that this matter be remanded to the Registrar of Contractors for case closure.

Done this day, January 21, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

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

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

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