ALJDEC

98F-1935-ROC · Registrar of Contractors · 1998-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 1998 APPEARANCES: Bruce and Linda Petrarca, Complainants, appeared in their own behalf George Eagan dba G E Landscaping, Respondent appeared in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT On April 5, 1997, the parties entered into a written contract whereby the Respondent would provide certain landscaping as well as constructing or extending patios, a driveway and walk, a barbecue, seat benches and wrought iron gates at the Complainant’s home which was being built on a golf course in Goodyear, Arizona. The initial price term for the contract was $18,378.00. Another $1,200.00 was added to the cost for the construction of a side wall. Included in the contract was a provision that the Respondent would “Install wrought iron gate and entry wrought iron inclosure (sic)”. The Respondent installed two wrought iron gates in the western perimeter fence but told the Complainant that the cost of the entry gate to the house was the Complainant’s responsibility. The Complainant paid $700.00 to Jose Espinoza (Espinoza) for the wrought iron entry gate and enclosure. The residence was completed on May 15, 1997. Sometime between April 5, 1997 and July 4, 1997, the Complainant decided on a misting system he wanted, and by a supplemental contract dated July 4, 1997, agreed to pay an additional $505.00 for the installation of a patio misting system. When the Complainant first used the misting system in the Fall of 1997, it was operational. However, a few weeks later it failed to work. The Complainant cleaned the system nozzles and it worked satisfactorily. The system was not used again until the Spring of 1998, at which time it did not work. In short, the misting system will work for a short period of time after being cleaned and then stop functioning as intended. Another problem area concerned a seating wall which showed extensive cracking in the smooth stucco finish. The Respondent did corrective work in January, 1998 but the cracks returned. Additional corrective work was done including finishing the majority of the stucco in a rough texture rather than smooth texture upon the advice of the Respondent. The seating area is still smooth although the repairs are discernible (Exhibit 15). Other problems concerned cracked stucco at the barbecue and fireplace, over- sprayed paint in some areas and inadequate paint on portions of the perimeter walls. The Respondent has also done corrective work on these areas. The corrections resulted in a noticeable differentiation in the appearance of these areas. Portions are smoother than other areas (Exhibit 20). The corrective work was not considered acceptable by the Complainant. On February 11, 1998, the Complainant filed his complaint with the Registrar of Contractors (Registrar). On March 9, 1998, Inspector Cliff Frandsen (Frandsen) of the Registrar’s Office, performed an inspection at the Complainant’s residence and on March 19, 1998, issued a Corrective Work Order (CWO). Some corrective work was done by the Respondent. Frandsen returned to the Complainant’s home on July 29, 1998, at which time it appeared that the parties agreed to a resolution of the problems still remaining. These problems included items not previously referenced in the CWO such as replacing a latch on the southwest wrought iron gate, adjusting the misting system so that it would drain and cleaning some nozzles, cracks in the barbecue, fireplace, seating wall and at an expansion joint in the concrete slab. Some of the cracks were acknowledged by the Complainant as being insignificant others were termed structural. Based on what appeared to be an agreement by the parties, Frandsen did not issue any further orders. The items on the CWO and the topics of the asserted agreement of July 29, 1998, which are still at issue in this hearing include the stucco work (cracking, inconsistent texturing and painting) of the barbecue, the fireplace and seating walls, the misting system, the rust spots and latch on a side gate, and cracking at an expansion joint of the concrete slab. Items raised initially during the hearing include the installation of the entryway wrought iron gate and whether it should have been installed by the Respondent under the contract, defective stucco at columns of the perimeter wall, paint over spray on the barbecue door and concrete material showing at the top of the fireplace stack. Frandsen performed a pre-hearing inspection on December 15, 1998. Based on that inspection, he provided the evidence resulting in the following findings. The expansion joint for the concrete measured a 1/4 of an inch wide. According to Frandsen if such a joint does not exceed 3/8 of an inch, it would remain within the standards set by the Registrar. The cracking of the stucco at the columns on the east side of the perimeter fence was not within workmanship standards. The concrete residue at the top of the fireplace stack is not acceptable. The latch at the southwest gate still requires painting. A paint over-spray problem at the barbecue (Exhibit 8) was not noted by Frandsen. The cracking of the stucco of the barbecue was not over 1/16 of an inch and was within standards set by the Registrar. Certain repairs and texturing of stucco (Exhibit 15) was termed as less than perfect but according to Frandsen did not require additional remedial work. Frandsen confirmed the fact that only one or two of the misting system nozzles were operating. CONCLUSIONS OF LAW The Citation and Complaint allege violation of A.R.S. 32- 1154(A)(3)/AAC R4-9-108, workmanship, (A)(7), wrongful or fraudulent conduct, and (A)(23), failure to take appropriate corrective action. It is not for the Administrative Law Judge to establish the standard which should apply in construction matters. Absent a clear showing that the testimony which is presented is erroneous, the testimony of one of the Registrar’s inspectors must be given significant weight with respect to any applicable standards and should not be lightly rejected. In this case, it was apparent that Frandsen did not consider the quality of the corrective work which was done on a number of items by the Respondent as being of the highest caliber. Frandsen testified, except for the items above which have been noted, that the corrective work met minimum workmanship standards and did not require further correction at the present time. Based on the most competent evidence, it is concluded that the stucco on the columns as shown in Exhibits 5 and 6 require corrective work, the southwest gate latch area requires painting, the misting system requires correction so that it will operate as intended with only normal maintenance by the Complainant, the concrete or mortar like residue on the barbecue chimney (Exhibit 7) needs to be removed. Based on these items, the violation of A.R.S. §32-1154(A)(3)/AAC R4-9-108 is proven. Other statutory allegations should be dismissed. The issue of the entry way gate is problematical. The contract is not clear as to what is meant by a “entry wrought iron enclosure”. Exhibit 3, a diagram and legend of the proposed landscaping, shows two gates and an enclosure for part of the landscaped area. The exhibit does not show an enclosure which is to be at the entrance to the home. The evidence shows the parties did not agree to the installation of the entry way enclosure or gate as part of the original contract. This is because the entry way is not shown on the diagram of the proposed work, the Complainant agreed to have Espinoza install the gate under a separate contract which was freely paid by the Complainant, and because the Complainant did not interpret the contract to include the entry way gate until some time shortly prior to the instant hearing. RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-21 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work by cleaning the concrete residue from the barbecue fireplace chimney, painting the southwest wrought iron gate and latch, correcting the defective stucco work on the columns of the perimeter fence and correcting the misting system to operate as intended with normal maintenance to be provided by the Complainant, or at the option of the Respondent, remove the misting system and return $505.00 to the Complainant; It is further recommended that if the Respondent accomplishes the above described corrective work and otherwise complies with the Order of the Registrar on or before the effective date of said Order, then the aforementioned suspension shall not take place and the Citation and Complaint upon which it is based shall be dismissed. Done this day, December 29, 1998.

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of December, 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