ALJDEC

97F-M1723-ROC-COM · Registrar of Contractors · 1998-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for a compliance hearing on December 15, 1998. The Complainants appeared in their own behalf, and the Respondent was represented by its attorney, Jeffrey R. Hovik, Esq. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance hearing are made.

FINDINGS OF FACT

1. The limited purpose of the instant compliance hearing was to determine whether or not Respondent has “substantially” complied with the terms and conditions of the Registrar’s prior Order entered on December 4, 1997 so as to warrant either the closing of the Citation and Complaint in this administrative action or the re-imposition of a temporary license suspension until appropriate compliance is demonstrated.

2. Following an extended time period over which the performance of remedial work by Respondent was effectively prevented because of an inability to gain Complainants’ permission for access to the jobsite premises, a corrective work effort was undertaken on May 21, 1998.

3. The testimony revealed that Respondent caused the entire concrete surfaces on the front and rear patios and on the front walkway to be wire- brushed, after which

the visible locations at which flaking and peeling had occurred were touched up with a stain material similar to the coating materials that had been utilized on the surrounding surface locations. This treatment included areas over cracks in the concrete surfaces (other than control joints) that were located along simulated grout lines between simulated tile or flagstone pieces.

4. The resulting overall surface condition and appearance was the subject of another jobsite inspection on June 4, 1998 by the Registrar’s assigned Inspector who gave credible and competent testimony tending to establish that the present installation satisfied all applicable industry standards and tolerances in every location except in a few areas where some extent of surface deterioration or discoloration was present. The Inspector additionally concluded that all such deterioration was traceable to Complainants’ acts or omissions and not to any workmanship improprieties on the part of Respondent.

5. A subsequent written report confirming compliance with the conditions of the prior Order was submitted by the Inspector and was the basis for the entry of a Closing Order by the Registrar. Before such Order became final, the Registrar determined, after considering the contents of a communication from Complainants, that an evidentiary compliance hearing should be scheduled so as to afford both parties the opportunity to present their respective positions through sworn testimony and photographic exhibits.

6. Prior to the scheduled compliance hearing, the Inspector conducted an additional pre-hearing re-inspection of the jobsite on December 8, 1998. His opinions and conclusions remained unchanged, and he testified that the nearly 1,100 square feet of concrete surface areas originally installed and subsequently repaired by Respondent were and continue to be 99% free of any indications of excessive flaking, peeling or cracking (other than intended control joints). Even the testimony of Complainants and their witnesses admitted that the combined total surface areas where deterioration was observable was no greater than 10% of the overall concrete patio and walkway installations.

7. Apart from the high degree of personal and primarily subjective dissatisfaction expressed and admittedly felt by Complainants, no sufficient showing was made that at the present time, the installed concrete, as corrected, is violative of any workmanship standards, including all functional and aesthetic considerations. A licensed contractor’s duties under the State’s contracting laws should not and do not extend to meeting every individual expectation of each of its various customers, especially with respect to the resulting appearance of construction work. Tested by reasonable objective standards, and upon reviewing and evaluating the abundant and somewhat conflicting testimonial and photographic evidence presented at the compliance hearing, it must be held that Respondent’s subsequent remedial efforts and the results thereof were in substantial compliance with the spirit and intent of the Registrar’s prior Order in this case.

CONCLUSIONS OF LAW

1. The overall aesthetic result of most all visible construction work will generally have an impact in the determination of what constitutes proper, acceptable workmanship. However, to impose an obligation upon a licensed contractor to insure that the final appearance of its resulting work will meet a homeowner’s own personal aesthetic standards would be an impractical and unduly onerous burden in view of the high degree of subjectivity involved. The workmanship provisions of the State’s contracting laws were not intended to subject a contractor to possible disciplinary action against its license for failure to satisfy the individual tastes of every homeowner/customer.

2. Under the totality of the evidence of record, a finding is supportable that Respondent has accomplished appropriate remedial work on substantially all visible areas where paint chipping. flaking or cracking had occurred in accordance with the mandates of the prior Order entered in this matter. Moreover, to the extent that some surface deterioration may still be visible in some areas, not only did the evidence fail to sufficiently establish that such condition was proximately caused by Respondent, but also the proof adequately demonstrated that the quantum of any such condition was minimal and has not re-occurred .....“in significant proportions within a relative short

time period, whether in the repaired or previously unrepaired locations,.....” (See Finding of Fact Number 8 in the prior Order dated December 4, 1997).

3. It must be concluded that Complainants have not sustained their burden of proof, as applicable in these administrative disciplinary proceedings, to adequately establish that Respondent’s remedial construction work was or is substandard or otherwise deficient. On the contrary the evidence of record tends to confirm that Respondent has achieved substantial compliance with the terms and conditions of the previously entered Decision and Order of the Registrar.

RECOMMENDED ORDER ON COMPLIANCE HEARING

In view of the foregoing, it is recommended on Compliance Hearing that the entire Citation and Complaint in Case Number M97-1723 be Closed.

Dated: December 22, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

ATTN: Joyce Armijo -----------------------

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