ALJDEC

99F-1995-ROC · Registrar of Contractors · 1999-08-24

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 1999.

APPEARANCES: The Complainants appeared in their own behalf.

The Respondent appeared thorough its qualifying party, Mike Bulat.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

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. At the outset of the scheduled hearing, Complainants confirmed that the sole items of their filed complaint in this case remaining in issue related to the roof tiles and to the concrete slabs in the garage and on the East patio, each of which items having been the subjects of prior repair efforts on the part of Respondent.

2. The evidence tended to indicate that some extent of shading within the colored concrete roof tiles had resulted in a visible degree of discoloration or lack of

uniformity in appearance. Despite the subsequent replacement by Respondent of a major portion of the tile at several locations on the roof surface, three individual pieces out of almost 5,000 total pieces were shown to be beyond an acceptable tolerance for color matching.

3. Following a jobsite visit, the Registrar’s assigned Inspector had issued a written directive to Respondent requiring remedial action with respect to the three identified tile pieces. However, although Respondent did remove and replace the specified tile pieces, this corrective work was shown to have been unsuccessful in that the replaced tiles were overly dark and did not produce an acceptable color match. Another replacement of the three tile pieces by or on behalf of Respondent, utilizing materials that more closely, although not identically, match the coloring of the adjacent tiles, will be required.

4. The post-tension concrete slabs on the garage floor and on the East patio had developed numerous cracks, many or most all of which were hairline in nature. The testimony revealed that approximately 75 linear feet of cracks were visible on over 600 square feet of the total combined surface areas of these slabs. A previous repair consisting of the filling of those cracks that were wide enough to receive patching material was successful to a degree, but several cracks were not treated and others have appeared as new cracks. The evidence did not sufficiently demonstrate that the cracking condition of the concrete was indicative of a structural deficiency or was incapable of being properly remedied by means short of a complete replacement or a complete re-coating.

5. The written directive issued by the Registrar’s Inspector had also included a requirement for Respondent to rectify the cracked concrete problem by appropriate

means. It was not disputed that one of Respondent’s subcontractors had communicated a tender of performance of proposed corrective work consisting of a choice, to be selected by Complainants, between Vee-ing out the cracks so as to allow the application of an epoxy fill material or the insertion of a compound into all cracks wide enough to accept same. Neither of such choices were shown to be inappropriate with respect to the proper means or methods of repair by way of addressing the problem of the concrete cracks. It was similarly undisputed that Complainants rejected the tendered performance, declining to allow either of the proposed methods.

6. Prevailing industry standards do not require that all repairs to the surface of concrete that has developed cracks must result in patches which are invisible. A tolerance as to the extent of visibility and to an overall aesthetic result exists, and it would be unduly speculative to assume that appropriate repair work would not result in a visible surface that will meet or exceed industry standards.

7. If left uncorrected, the present condition of the concrete surfaces containing cracks both on the garage floor and on the East patio reflects adversely upon Respondent’s workmanship. However, under all the circumstances, the rejected tender of repair work by Complainants is not found to have constituted any form of waiver of their right to receive remedial measures. Instead, they should be afforded another opportunity to accept corrective work which should be re-tendered by or on behalf of Respondent and thereafter properly performed, if access by the owners is allowed.

8. Irrespective of a high degree of personal dissatisfaction with the original and the corrective work expressed by Complainants on a consistent and ongoing basis, the evidence failed to adequately establish that the roof presently requires a complete tile removal and replacement or that the garage and patio slabs require either removal, replacement or a complete re-coating after patching. On the contrary, the fully credible

testimony at the hearing of other witnesses with many years of experience and familiarity with roof tile and concrete work, including the Registrar’s Inspector, tended to reveal that the observed degree of discoloration in the roof tiles and of the concrete cracking was not overly excessive or otherwise indicative of the utilization of improper methods or defective materials, since the balance of the entire installations, comprising the dominant percentages of the respective construction features, were and are within acceptable standards and tolerances. Moreover, the proposed remedial measures, if properly accomplished, appeared to be fully capable of meeting or exceeding all such prevailing industry standards and tolerances.

9. To impose an obligation upon a licensed contractor to insure that the original or final appearance of its resulting work will meet a property owner’s own personal aesthetic standards would be an impractical and unduly onerous burden in view of the high degree of subjectivity involved. The workmanship provisions of the State’s contracting laws were not intended to subject a contractor to disciplinary action against its license for failure to satisfy the individual tastes of all owners or customers.

10. The showing that a valid tender of corrective work relating to the concrete crack was made by Respondent and thereafter rejected by Complainants, considered together with a good faith, albeit unsuccessful, attempt to replace the few mismatched roof tile pieces, serves to preclude any finding that Respondent has not complied with the spirit and intent of the Inspector’s written directive. Nor did the evidence indicate that Respondent had committed any other wrongful act to the detriment of Complainants within the meaning of another charged contracting law violation enumerated in the issued Citation.

CONCLUSIONS OF LAW

1. The evidence of record did adequately establish that Respondent is in violation of the workmanship provisions contained in A.R.S. §32-1154A (3); namely Rule R4-9-108. However, no violations by Respondent of A.R.S. §32-1154A (7) or (23) were sufficiently proven hereunder.

2. The overall aesthetic results of most all visible construction work will generally have an impact in the determination of what constitutes proper, acceptable workmanship. However, while the Complainants did present sufficient evidence to support a determination that, if left uncorrected, portions of the roof tile work would be substandard with respect to color matching of three individual pieces and that the cracks in the garage and patio concrete reflect a deficient surface condition necessitating further repair efforts, the evidence failed to sufficiently demonstrate that these items or areas are incapable of correction by means short of a complete replacement or re-coating.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order (thirty-five days after the date of mailing) that Respondent’s Class B license be suspended until the Registrar receives proof that Respondent has accomplished proper corrective work on the roof by replacing three tile pieces with materials of a closer color match and by properly repairing the cracks on the concrete garage floor and East patio surfaces.

It is further recommended that if Respondent accomplishes the above- described corrective work on or before this Order’s effective date, or if Respondent is unable to accomplish such work because of Complainants’ unwillingness to accept a valid tender of same or their refusal to grant reasonable and timely access to premises, then the entire Citation and Complaint in Case Number 99-1995 shall be closed.

Dated: September 1, 1999. 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 Street (6th Floor) Phoenix, AZ 85007

ATTN: Joyce Armijo -----------------------

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