ALJDEC

98F-1727-ROC · Registrar of Contractors · 1998-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 19, 1998 APPEARANCES: Bruce Wiegand, Member, on behalf of the Complainant, Sun Craft Quality Builders, LLC Al Hennigan, Member, on behalf of the Respondent, Shadow Mountain Construction, LLC ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT In approximately April of 1997, the Complainant (Sun Craft), as the general contractor and the Respondent (Shadow Mountain), as the subcontractor, entered a contract for the Respondent to do the stucco work at a home being built by Sun Craft in Scottsdale, Arizona. The cost on the contract was $10,800.00. In August, 1997, upon substantial completion of the home, Sun Craft noted problems with some stucco patchwork which was bleeding through the paint. Shadow Mountain asserted the problem was caused by the painter. Initial patching had been done by Shadow Mountain with a latex base textured caulking identified as VIP. This product tends to show some color variation when paint is applied to it in contrast to the cement type stucco. The homeowner filed a complaint with the Registrar of Contractors (Registrar), against Sun Craft on multiple items, including the stucco. In November, 1997, Inspector Lewis King (King) of the Registrar’s Office performed an inspection and concluded the stucco repair was showing through the paint and that Sun Craft was responsible for correcting the condition. King did not make a determination with respect to whether Shadow Mountain had any responsibility for painting the stucco. According to King, the painter had not done the final painting of the stucco repairs. In December, 1997 or January, 1998, Shadow Mountain did some more patching of stucco with the VIP caulking material and Sun Craft had the home repainted. After painting, the same bleed through problem was noted by Sun Craft. On January 23, 1998, Sun Craft filed the instant complaint against Shadow Mountain with the Registrar. Shadow Mountain corrected the affected areas by spraying them with stucco rather than using the caulking. On March 5, 1998, King performed another inspection in the case of the homeowner against Sun Craft, (case no. 98-1014). At that time, King also did the inspection for the instant case. On March 16, 1998, King issued a Corrective Work Order (CWO), to Shadow Mountain. The pertinent part of the CWO required Shadow Mountain to correct some chipping, and excessive stucco cracking in the upper left corner of the exterior guest room door, the southeast corner of the house and the re- sprayed area of the front entrance column. King made no determination about the responsibility for painting other areas which had been re-sprayed with stucco because the he could not determine the severity of the underlying problem. No evidence was presented that the corrective work required on the stucco was not done as required by the CWO. Shadow Mountain refused to be accountable for the painting of the areas which had been repaired and Sun Craft took it upon itself to have someone repaint the entire exterior of the house. The colors are a light gray with inch white trim at the top and a three foot wide white trim around the bottom. The painter charged $1,950.00 and Sun Craft had to provide the materials and some additional labor. No documentation was provided for the cost of materials or labor and no reliable costs can be determined as to those items. According to the letter from the original painter (exhibit 2), he painted the house originally and repainted it once. The third painting after the final patching of the stucco was done by another painter and paid for by Sun Craft. The Respondent’s license is currently not on active status. CONCLUSIONS OF LAW The Citation and Complaint allege violations of A.R.S. §32- 1154(A)(3), violation of any rule, specifically A.A.C. R4-9-108, workmanship standards, (A)(7) wrongful or fraudulent conduct, and (A)(23) failure to take appropriate corrective action. There was no evidence that the CWO required Shadow Mountain to do the painting. In fact, King testified he did not make any determinations on this issue. Absent evidence that stucco work other than the painting was not done as required by the CWO, the allegation with respect to (A)(23) should be dismissed. The primary issue presented by the Complainant relates to whether the Respondent owes restitution for the cost of painting the final stucco patching due to the Respondent’s failure to patch the stucco by re-spraying rather than caulking. Although the CWO did not hold the Respondent responsible for the painting, the facts show that the initial stucco repair work done with the caulking, was deficient because the color variation between the stucco and caulking was apparent when the exterior was painted. Despite requests by the Complainant, to re-spray stucco rather than caulking to make additional repairs, the Respondent continued to use caulking and the Complainant again had the exterior painted. After being informed that the initial repair with caulking was causing problems, the Respondent should have done further repair with stucco at that time rather than later. Violations of A.R.S.§32-1154(A)(3)/A.A.C. R4-9-108 and A.R.S.§32-1154(A)(7), wrongful act only, are found. It is noted that the Complainant was on notice of the paint problem with the caulking and yet had the entire home repainted after the Respondent did additional repairs with the caulking. It is questionable how reasonable this was in light of the Complainant’s knowledge of the problems associated with the caulking. It would have been advisable to paint over a limited area to determine if the same bleed through problem would occur. Therefore, the Complainant must also bear some responsibility for the additional costs of the final paint job. RECOMMENDED ORDER In view of the foregoing it is recommended that commencing on the effective date of the Order entered in this matter that the Class C-36 license of the Respondent shall be revoked unless the Registrar of Contractors receives written proof that the Respondent has made partial restitution to the Complainant in the amount of Nine Hundred and Seventy Five and 00/100’s ($975.00) Dollars; It is further recommended that if the Respondent makes restitution as required by the Order entered in this matter on or before the effective date of the Order, then the aforementioned revocation shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, October 22, 1998.

_________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of October, 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