ALJDEC

99F-1525-ROC · Registrar of Contractors · 1999-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 1999 in Phoenix, Arizona. APPEARANCES: Complainant James Caldwell appeared, represented by Robert Blecher, Esq. Respondent’s Qualifying Party, Mike Bulat, appeared, and Respondent was represented by Aaron Kizer, Esq. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainants and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent was the builder of a new residence for Complainants. 2. Respondent is the holder of a Class B license issued by the Registrar of Contractors (Registrar). 3. This matter concerns the stucco and efflorescence on that new house. 4. Complainants testified that they noticed stucco cracks on moving in to the house in February 1997. Complainants notified Respondent who sent people to make repairs over the time period. Complainants believe the repairs “made a mess of things” with only patching compound and not painting the repaired areas. Complainants brought their concerns to Respondent several times, they say, without resolution. 5. In November 1998, Complainants filed a formal complaint with the Registrar alleging some specific complaints against Respondent. The formal complaint lists: stucco repair, efflorescence of paint, wood trim, broken tiles and doors not square. The letter attached to the formal complaint states: efflorescence, thickness of stucco, cracks, chips in stucco, out of square doors, warped trim and broken roofing tile. 6. As a result, Registrar’s Inspector scheduled a site inspection for January 27, 1999. On February 5, 1999, a Corrective Work Order (CWO) was issued regarding five items at the inspection, and directing Respondent to perform certain designated corrective work at the site. As to one door, there was no repair ordered because the Inspector indicated that it was plumb and level and the one time door adjustment was in the first year of move-in. Per statute, corrective work is required to be done within fifteen days. 7. According to the parties, Respondent did eventually complete repairs on the warped door trim, on the roof tiles, and on the front entrance door. 8. On March 30, 1999, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.23 and 32-1154.A.3, specifying Arizona Administrative Code (A.A.C.) R4-9-108. 9. On April 8, 1999, Respondent filed its written answer, indicating it had arranged for the stucco subcontractor to return, and that the stucco had been repaired. Respondent further indicated that any further cracks, prior to painting would be repaired. Respondent also indicated that it had arranged for the house to be repainted, when the new subcontractor believed that the stucco had cured completely (with the new subcontractor understanding that it would be responsible for the warranty for two years).

10. The matter remained unresolved, and Notice of Hearing was issued. After an agreed-to continuance, the matter was rescheduled for hearing to be held on September 23, 1999. 11. On September 10, 1999, Respondent filed a Motion to Dismiss the matter, reciting that the repair work had all been done and submitting pictures of the alleged repaired areas. Respondent asked that it not be required to go through the time and expense of a hearing when the repairs were done. 12. Complainant filed a Response, stating that repair work had been done in August 1999, but that cracks were already beginning to reappear. Complainant acknowledged that the efflorescence was not visible at this time, but stated that the repair was cosmetic and it would reappear. 13. At the hearing, competing witnesses presented varied testimony regarding stucco application in the Valley, standards for three coat applications versus one coat applications, the nature of stucco product itself, the possible causes for cracking, and the probable cause of efflorescence. 14. At the hearing, Registrar’s Inspector King testified that he had found four areas of repeated stucco cracking, where repair had been made but had failed and the surface was separated at or near: west wall bedroom window (two foot long crack with raised area and displacement of product); west wall master bath (vertical crack under window); master bedroom (crack at lower window has separated with displacement of the product); and north wall family room (crack at lower window with slight separation and displacement at surface). Inspector King further indicated that areas at the parapet were repaired but should have been feathered in better on the repairs. Inspector King indicated that some areas of the stucco where Complainants had some concern were within industry standards, and that some cracks simply were not able to be seen when evaluated from an appropriate distance. Inspector King indicated that the stucco had been repainted, but he could not determined whether any undercoating had been used, and that Complainants had two years from the painting to file with the Registrar on any concern therewith. 15. At the hearing, Respondent indicated its willingness to return to the house and repair the four areas and the feathering, and to have the areas repainted. 16. Complainant argues that the repairs were not appropriate, with new cracks appearing less than two weeks since the repairs. Complainant argues that repairs to the roof/parapet were not sufficient. Complainant argues that the entire application of the stucco was not thick enough and argues that is a further cause of the cracking. Complainant requests that the entire house be surrounded with a material coating to correct the stucco cracking and the possible returning efflorescence, and then repainted. 17. Respondent is required to properly repair the stucco and cracking and feathering in the areas where it has failed or was unacceptable at the pre-hearing inspection, as were indicated by Registrar’s Inspector. Registrar’s Inspector found no other continuing problems with the stucco or the repaired areas. Respondent is not required to repair to a homeowner’s specifications or satisfaction, but only to industry standards. APPLICABLE LAW Arizona Revised Statutes (A.R.S.) §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: … 3. Violation of any rule adopted by the Registrar; specifically Arizona Administrative Code (A.A.C.) R4-9-108[1]. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar. … /// /// CONCLUSIONS OF LAW 1. Credible evidence established the existence of failing and cracking stucco in certain areas and of failing repairs. Therefore, as to this item, the evidence and testimony at the hearing established violations, by Respondent, of A.R.S. §§32-1154.A.23 and 32-1154.A.3 namely A.A.C. R4-9-108. 2. In this case, Complainant has not proven that the application of the stucco (thickness) was inappropriate as to industry standards. Additionally, there was no showing that the contract between Complainant and Respondent called for a specific thickness of stucco which was to be applied or was to be the result in the construction of this house. 3. In this case, the failure by Respondent to take corrective action under the CWO further indicates the commission of a wrongful, but not fraudulent, contracting act to the detriment of Complainant, pursuant to A.R.S. §32-1154.A.7. RECOMMENDED ORDER 1. In view of the foregoing, it is recommended commencing on the effective date of this ORDER, that the Respondent’s Class B license be temporarily suspended until the Registrar receives proof that the appropriate repairs of the stucco are completed. 2. It is further recommended that if Respondent properly accomplishes the above described repairs on or before the effective date of that ORDER, then the above recommended temporary license suspension shall not take place and Citation No. 99-1525 shall be closed. RECOMMENDED this day, October 8, 1999.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of October, 1999 to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827