ALJDEC

97F-M1723-ROC · Registrar of Contractors · 1997-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on November 10, 1997. The Complainants appeared in their own behalf, and the Respondent appeared through its owner and qualifying party, Alan Fredrick Norton. 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. Pursuant to a contractual agreement, Respondent had performed concrete work on Complainant’s property consisting of providing a simulated flagstone and Mexican tile surface. This treatment had been placed over existing front and rear patio slabs, and a front walkway was removed and repoured with several steps prior to receiving the same simulated surface treatment .

2. The original simulated surfaces were installed with colored concrete, but all surfaces were subsequently painted in an effort to alter the initial color. A previously filed separate complaint by Complainant was the subject of a prior hearing on the merits and also of a compliance hearing. It appeared that one of the items of the present complaint relating to the painted color was also part of the previously filed complaint and was fully

litigated as part of the compliance hearing. Neither the correctness of the present surface color nor the propriety of painting rather than using colored concrete material may properly be addressed in this proceeding. Any disagreement by either party with the Registrar’s prior Order on Compliance Hearing could have been and should have been pursued by further appeal of that decision.

3. The Compliance Order issued by the Registrar did require some corrective action by Respondent so as to rectify the appearance of adjacent surface areas on which spillage of materials had occurred during portions of the prior work which resulted in stains on the public sidewalk and the driveway surfaces, neither of which were areas included within Respondent’s contracted work. It is determined, based upon the somewhat conflicting testimonial and photographic evidence presented at the instant hearing that Complainants have not sustained their burden of proving that the remedial efforts to remove the driveway and sidewalk stains were unsuccessful or unacceptable according to prevailing industry standards and tolerances.

4. Despite the admitted existence of a small portion of material that has broken off or fallen off along the lip of one of the installed walkway steps, there was an insufficient showing that such condition was proximately traceable to any act or omission of Respondent in its installation or finishing work. Other near equal causal explanations were shown to exist with respect to the damage to the edge of the step.

5. The intended result of simulating stone or tile surfaces which are not entirely even and smooth has produced several areas where a small degree of ponding of water will occur after rainfall or hosing, and some minimal extent of surface unlevelness is also evident. However, neither the depth nor the duration of any standing water was demonstrated to be

excessive, and the extent of unlevelness was likewise not shown to be unacceptable for this product. Additionally, Respondent ‘s work is not found to have been the cause of any warping or lifting of expansion joint material abutting the stucco walls around the dwelling.

6. Although at or around the time of filing the within complaint the combined quantity of observable chipped or flaked paint locations or of cracking in numerous grout areas may not have been unduly excessive or otherwise indicative of an underlying deficiency, prompting the Registrar’s assigned Inspector not to issue any directive to Respondent for any corrective measures, there was a credible and photographically corroborated showing that these conditions have continued and worsened in substantially more individual locations with the passage of time. Moreover, the large quantity of presently visible grout area cracks did not appear consistent with the placement and number of planned control joints.

7. Neither the Respondent nor the Registrar’s assigned Inspector had viewed the jobsite condition or appearance of the concrete surfaces for a prolonged time period of approximately six months, and the Inspector did not appear or testify at the hearing. It is found and determined that the evidence as to the present condition and appearance of the surfaces adequately demonstrates that the Respondent's prior painting efforts to achieve a different color result as well as its attempted repairs to deteriorated or delaminated areas have not been sufficiently successful, reflecting adversely upon Respondent’s workmanship. Additionally, since the primary inducement for Complainants to have entered into the contract with Respondent was to enhance the appearance of their property, the visible chipping, flaking or cracking conditions at numerous scattered locations on the simulated surface are found to have effectively breached Respondent's implied warranty of fitness for aesthetic purposes,

thereby constituting a wrongful act to the detriment of Complainants within the meaning of another code section charged in the instant Citation. All surface locations in which the painting or patching has failed to adhere, or in which grout line cracking has developed, warrant further corrective measures by Respondent.

8. A licensed contractor is not entitled to an endless series of opportunities to remedy deficiencies in its work. The past history of this case serves to generate a duty at this time to undertake and accomplish more extensive and, perhaps, more expensive methods of correction so as to enable a more effective and lasting result. Consequently, Respondent should be afforded one, and only one, further chance to undertake and complete corrective measures addressing the visible deterioration and cracking problems in the painted surfaces and to achieve adequate and successful results. If the chipping and flaking condition continues to occur in significant proportions within a relatively short time period, whether in the repaired or previously unrepaired locations, Respondent will be required to remove and replace the entire simulated surfaces, in which event another color must be selected and utilized after having secured advance approval by the homeowner’s association. (Respondent had not been sufficiently placed on notice of any of the association's color requirements prior to the application of the present color and is not held responsible for any present non-conformity with such requirements).

CONCLUSIONS OF LAW

1. The evidence of record sufficiently established, with respect to the surface paint flaking and chipping, as well as the extent of cracking in the grout locations, that Respondent has violated the provisions of A.R.S. §32-1154A (7) and (3); namely, Rule R4-9-108. However, no violation by Respondent of A.R.S. §32-1154A (23) was adequately proven hereunder. RECOMMENDED ORDER

In view of the foregoing, it is recommended, commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that Respondent’s Class B-03 license shall be temporarily and actively suspended until the Registrar receives proof that Respondent has accomplished appropriate remedial work on all visible areas where paint chipping, flaking or cracking has occurred, as set forth in and in accordance with Findings of Fact Numbered 6, 7 and 8, but excluding the chipped walkway step, as mentioned in Finding of Fact Number 4..

It is further recommended that if Respondent accomplishes the above- described corrective work in a proper, workmanlike manner on or before this Order’s effective date, then no license suspension shall be imposed, and the entire Citation and Complaint in Case Number M97-1723 shall be closed.

Dated: November 18, 1997. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on ________________________

by: ______________________________ , To:

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

ATTN: Hearing Department -----------------------

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