ALJDEC

97F-H0127-ROC · Registrar of Contractors · 1998-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGSN

HEARING: June 3, 1998. APPEARANCES: Complainant was represented by his attorney, Roger Foote. Respondent was represented by its attorney, Robert Brooks. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent was the general contractor for the construction of Complainant’s house located in Kingman, Arizona. 2. Construction of Complainant’s residence was completed approximately three years ago. 3. Complainant originally filed Complaint No. H95-0124 against Respondent with the Registrar of Contractors on November 15, 1995. Respondent elected at that time to address water leakage and non-uniform stucco color by repairing cracked stucco and painting the exterior stucco with an elastomeric paint. That complaint was then closed by the Registrar of Contractors. Subsequent rain established that those remedial repairs were unsatisfactory. 4. Following Respondent’s unsuccessful remedial repairs, Complainant then filed the complaint in this matter. Complainant alleges that the following items are substandard: leaking parapets; leaks around windows, doors and vegas; garage slab; patio slab; down spouts; slab at entry; driveway slab; and general lot grading. 5. As a result of the present complaint, the Registrar of Contractor issued a Corrective Work Order dated May 1, 1997, directing Respondent to timely perform the following remedial work: “ Make all repairs outlined in report from Mohave Engineering, Job #97-91 dated February 28, 1997. All work done must comply with engineers (sic) recommendations and all applicable codes. Check with Mohave County Building Department to verify if permits are needed for work. -OR- Otherwise resolve this complaint to the satisfaction of the home owner.” 6. Respondent did not timely comply with the terms of the Registrar’s written directive. 7. Respondent’s answer to the subsequently issued Citation in this matter expresses an intent to replace the stucco at Complainant’s residence and any substandard concrete, except the driveway. Respondent indicated that its attorney was attempting to seek a resolution with its insurance carrier and its stucco subcontractor’s insurance carrier. 8. Complainant’s residence is a Spanish style house with stucco parapet walls. The house design has exposed vegas which were stubbed into framing. 9. It is uncontroverted that Respondent did not install any moisture resistant barrier material or flashing when it constructed the parapet walls, vegas, windows and doors at Complainant’s home. Since the initial construction and subsequent repairs by Respondent, water has leaked into Complainant’s residence at those locations resulting in interior water damage. There is credible evidence of record that the water infiltration has resulted in the presence of mold in the areas of the water damage. 10. Respondent’s defense that its construction of Complainant’s residence without any moisture resistant barrier materials or flashing was proper because it was standard industry practice in Mohave County not to do so is unpersuasive given the extent of water leakage occurring at Complainant’s residence. No proper industry standard should allow the degree of water infiltration, and resulting interior damage, occurring at Complainant’s home. 11. According to Uniform Building Code section 1708, a moisture resistant barrier/flashing is required to be installed at the leaking parapets. Respondent is deemed responsible for complying with that code requirement. 12. Respondent is deemed responsible for repairing leaks around windows, doors and vegas to the requirements of Uniform Building Code section 1708. 13. It is determined that Respondent should be required to remove all of the stucco from the house down to the framing. There is evidence of significant water infiltration into the interior of Complainant’s residence, including the presence of mold directly attributable to such infiltration. Therefore, Respondent is deemed responsible for examining the framing and repairing, if necessary, all areas, including interior areas, damaged by water infiltration. 14. Respondent’s position that it should be allowed to progressively perform remedial repairs until proper repairs are accomplished is unpersuasive. Given the time that Respondent has had to affect proper repairs and the extent to which there has been significant and prolonged water infiltration into the interior of Complainant’s home, it is found that the scope of the above described corrective action is warranted. 15. Respondent has previously repaired a portion of Complainant’s garage slab due to uplift. That area is again suffering from uplift near the mid- point of the slab’s width. Respondent is found to be responsible for removing and replacing that area of the garage and installing expansion joints in the slab to minimum workmanship standards. 16. At the rear of Complainant’s house there is a concrete slab patio. The patio does not provide positive drainage away from the house. Respondent is deemed responsible for performing all necessary repairs to that slab to provide proper drainage to minimum workmanship standards. 17. The flat roof construction of Complainant’s residence directs water off the roof through down spouts or drain pipes inside the exterior walls, which then exit water near the bottom of the walls. The east side of the house has an area approximately 2’ long which ponds water about 1/2” to 1” deep against the house. Respondent is found to be responsible for repairing that area to minimum workmanship standards. 18. The concrete slab at the entry to Complainant’s home is found not to meet minimum workmanship standards. Respondent is responsible for performing all appropriate repairs, including replacement of the slab if necessary, to the entry slab so that it contains proper expansion joints at the perimeters and that it is sloped to provide positive drainage through the opening in the garden wall. 19. Complainant contracted for the construction of an aggregate driveway. Subsequent to the original installation of the driveway, Respondent performed remedial repairs to that slab by placing a 4” concrete cap over the existing driveway. There is credible evidence that Respondent’s remedial repairs were unsuccessful. There are various locations where the driveway is unstable. In those areas the driveway “rocks”, indicating a substrate problem. Respondent also does not have an aggregate driveway as required by plans. Respondent is found to be responsible for removing the existing driveway, assuring that there is proper soil compaction and for re-pouring an aggregate driveway per plans and specifications. 20. As the general contractor for this project, Respondent is the ultimate responsible party for the above-described substandard workmanship of its subcontractors. Respondent has had ample opportunities to rectify the proven areas of deficient workmanship in this matter. From February of 1997 to the date of this hearing, and despite the Registrar’s corrective work order, Respondent has not performed any remedial repairs. Instead, Respondent has been negotiating with its insurance carrier and its subcontractor’s insurance company. However, those negotiations do not stay Respondent’s obligation owed to Complainant to perform the required repairs to minimum workmanship standards. 21. It is uncontroverted that Respondent did not comply with the Registrar’s corrective work order, the scope of which, except for the general lot grading, is supported by the evidence of record. 22. Respondent’s above-described substandard workmanship, failure to perform subsequent remedial repairs to minimum workmanship standards and failure to comply in any respect with the Registrar’s written directive are deemed wrongful acts which have substantially injured Complainant.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent violated the provisions of A.R.S. § 32-1154 (A) (7), (23) and (3); namely Rule R4-9-108. 2. The Registrar of Contractors has authority to impose a civil penalty of not to exceed $500.00 on a contractor for each violation of A.R.S. § 32- 1154 (A) (23). A.R.S. §32-1154 (D). Under all the circumstances, the Registrar should consider exercising a portion of that power in light of Respondent’s failure to comply with any part of the Registrar’s written directive.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s Class B license be suspended until the Registrar of Contractors receives written proof that the items set forth in Findings No. 11, 12, 13, 15, 16, 17, 18 and 19 have been appropriately rectified by Respondent.

It is further recommended that if Respondent properly accomplishes the above-described corrective work on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place.

It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license shall be placed on probation for a period of ninety (90) days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of that Order is filed with the Registrar of Contractors, whichever is later.

It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $300.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154 (D). The failure by Respondent to pay the entire amount of that civil penalty on or before thirty (30) days following the effective date of the Order entered in this matter shall result in the automatic revocation of Respondent’s contractors 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) (5) unless payment of any outstanding prior civil penalty is tendered.

Done this day, June 23, 1998.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

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

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

By _______________________________

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