ALJDEC

98F-2578-ROC · Registrar of Contractors · 1998-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 1998. APPEARANCES: The Complainant, Amy S. Fisher, Esq., appeared personally. Respondent was represented by his attorney, David L. Knapper, Esq. 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 is the holder of License No. 093534, a Class B general residential contractors’ license, issued by the Registrar of Contractors. 2. In the Fall of 1997, Complainant contracted with Legacy Homes, as the general contractor, for the remodel of the front portion of Complainant’s home. 3. Legacy Homes hired Respondent as the lath and stucco subcontractor for that work. The stucco application for that area was to be, and is, a smooth sand finish. 4. Complainant subsequently entered into a separate agreement with Respondent for lath and stucco work at the rear area of her home. Respondent was to apply lath and stucco over existing T-111 wood siding to match the adjacent stucco block construction. Instead of selecting a smooth sand finish for the new stucco, which was determined to be too expensive for the project budget, it was decided that the new stucco would have a brush mortar wash finish to match the house’s existing block wall finish. 5. Respondent completed its original scope of work at the rear portion of Complainant’s home and subsequently attempted remedial repairs to its deficient workmanship on three separate occasions. 6. Complainant filed a complaint with the Registrar of Contractors alleging that Respondent had violated provisions of the state’s contracting laws during its performance of the original work and the subsequent attempted repairs. 7. As a result of the filed complaint, the Registrar’s assigned inspector performed a jobsite inspection at Complainant’s residence to view and assess Respondent’s workmanship. That inspection resulted in the issuance of a Corrective Work Order dated June 2, 1998, by the Registrar directing Respondent to timely determine the cause and correct the following described areas of deficient workmanship:

A) Stucco at the rear atrium: the stucco is cracking, falling off the wall, not finished up to the underside of the soffet or eaves trough and the retexturing does not match the existing texture. B) There are cracks around the inside frame of the east family room window due to the application of stucco.

8. The stucco application described in Finding of Fact No. 7 A) does not meet minimum workmanship standards. 9. The cracks described in Finding of Fact No. 7 B) are deemed to have been resolved as the result of an insurance claim payout received by Complainant. 10. The Registrar’s assigned inspector performed a subsequent jobsite inspection which resulted in the issuance of a second Corrective Work Order dated August 18, 1998. The second written directive required Respondent to determine the cause and undertake appropriate remedial repairs to the following areas of deficient workmanship:

A) There were patio bricks, located at the east patio and rear or south patio, damaged by stucco debris. B) Stucco texture not acceptable: there was debris on stucco beam located between the garage and Complainant’s office; the pilaster located at the east side of the garage has recessed area; the top of the front wall located between Complainant’s garage and her neighbor’s carport was gouged or rough due to Respondent moving supplies back and forth over the wall; there is lumpy stucco at an area above the east door wall and an area above the rear garage service door; and stucco was not applied all the way down the wall to grade line on the east side of the garage.

Those areas are found not to meet minimum workmanship standards. 11. The inspector’s second corrective work order further concluded that there were no violations of the state’s contracting laws in the following areas:

A) The stucco is the correct thickness for the western one-coat application. B) Although the electrical outlet located on the east exterior wall was embedded in stucco, the inspector concluded that there was no violation because Complainant advised him that the condition was acceptable to her.

The stucco is determined to meet minimum workmanship standards for thickness. However, the evidence of record is adequate to support a finding that the electrical outlet embedded with stucco does not meet minimum workmanship standards. Respondent is responsible for correcting that deficiency. 12. The second corrective work order states that the telephone outlet on the east exterior wall is partially embedded in stucco, but the directive does not contain a conclusion as to whether or not that condition meets minimum workmanship standard nor requires Respondent to correct the condition. It is determined that Respondent is responsible for removing any stucco debris on the telephone outlet. 13. Respondent has not complied with the Registrar’s written directive. Complainant refused to allow Respondent to have access to her property unless Respondent provided her with an analysis of the proposed remedial repairs. Respondent claims that it is unable to provide such information until it has access to the jobsite to review the field conditions in order to formulate a repair plan. Given that Respondent has had a total of four opportunities to perform the above described work to minimum workmanship standards and has been unsuccessful in those attempts, Complainant’s hesitancy to allow Respondent to attempt any further remedial repairs without an explanation as to its intended course of repairs is deemed justified and reasonable. Notwithstanding the foregoing, Respondent is found to have made a good faith effort to gain access to the jobsite in order to attempt to comply with the two written directives. 14. While it is a long standing policy of the Registrar of Contractors to allow a contractor to correct its deficient workmanship as a reasonable condition to be placed on its license in disciplinary actions, the evidence of record supports a finding that Respondent should be required, at its sole cost and expense, to cause another licensed contractor to perform the above described required remedial repairs rather than be given a fourth opportunity to attempt such repairs. Respondent’s owner and qualifying party, who personally has attempted the stucco repairs, is an experienced lath contractor but he is found to lack the necessary stucco trade skills to properly accomplish the required repairs. 15. Respondent’s failure to originally complete its scope of work at the rear portion of Complainant’ home to minimum workmanship standards and its subsequent failure on three occasions to properly perform remedial repairs to its deficient workmanship are deemed wrongful acts which have substantially injured Complainant. 16. A review of the official records of the Registrar of Contractors reveals that Respondent has an above average license history which should be considered as a matter in mitigation when contemplating disciplinary penalties in this matter. 17. It is determined that Complainant did not violate Respondent’s due process rights by her refusal to allow a videographer to record the pre- hearing jobsite inspection. Respondent is found to have been given sufficient access to the pre-hearing inspection to view the present field conditions and to take still photographs of those conditions.

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) and (3); namely Rule R4-9-108.

2. The evidence of record is deemed insufficient to establish that Respondent violated the provisions of A.R.S. §32-1154 (A)(23).

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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 receives written proof that Respondent has caused, at its sole cost and expense, a properly licensed contractor to perform all necessary repairs (including demolition, if needed) to the areas of Respondent’s deficient workmanship described in Findings of Fact Nos. 7A), 8, 10, 11 and 12 above so that those areas meet minimum workmanship standards.

It is further recommended that if Respondent properly causes another licensed contractor to accomplish the aforementioned 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 disciplinary probation for a period of 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 the entered Order is filed with the Registrar of Contractors, whichever is later.

Done this day, January 7, 1999.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

ATTN: Joyce Armijo

By _______________________________

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