ALJDEC

99F-2472-ROC · Registrar of Contractors · 1999-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 1999 APPEARANCES: Linda Heinz on her own behalf; Bernard Arling Hazen on his own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On January 29, 1999, Linda Heinz (“Complainant”), Shelter Painting Company (“Respondent”) and J. P. Malone Construction, Inc., the “project manager” entered into a contract (the “Contract”) for Respondent to paint the interior and exterior of Complainant’s home (the “Home”) for $11,750.00. 2. After Respondent performed the work set forth in the Contract, Complainant noticed that the exterior of the Home and the perimeter block wall was showing signs of blotching and fading. 3. Complainant notified Respondent of the above-mentioned situation and requested that Respondent correct it. Respondent inspected the Home and told Complainant that he had used different material than that set forth in the Contract. Respondent informed Complainant that the material used was as good, if not better. than what was set forth in the Contract. During the hearing, Complainant attempted to prove that the problems she is experiencing at the Home relates to the change in the material applied by Respondent. Due to the problems Complainant was experiencing with the Home’s exterior appearance, she filed a complaint with the Registrar of Contractors against Respondent. Robert Dragoon, an inspector for the Registrar of Contractors, was assigned to this matter and performed a jobsite inspection of the Home on April 14, 1999. As a result of the above-mentioned jobsite inspection, a Corrective Work Order was issued by Inspector Dragoon requiring Respondent to address the change of materials and correct it by appropriate means. Inspector Dragoon did not require corrective action to be taken with respect to the allegation of paint failure because Inspector Dragoon determined the cause of the paint fading and blotching at the Home was the result of excessive stucco cracking. It is uncontroverted that Respondent did not comply with the Corrective Work Order because Respondent believed that the materials he used were superior to that stated in the Contract and because he had received verbal approval for the change of materials through J. P. Malone. through the credible testimony of Respondent and Greg Hammond, a former superintendent with J. P. Malone, it was established that the provisions in the Contract pertaining to paint and sealer materials were the same provisions used by J. P. Malone in other contracts that J. P. Malone and Respondent had concerning other projects. The evidence of record establishes that Respondent notified J. P. Malone that, unless he hears otherwise from J. P. Malone, he was substituting the Sunland products specified in the contracts with Sunlife products. J. P. Malone received notification of such change of materials and the record is void of any notification from J. P. Malone to Respondent to stop using Sunlife materials. The evidence establishes that J. P. Malone agreed to Respondent’s substitution of materials as mentioned above with respect o other projects in which Respondent was acting as a subcontractor for J. P. Malone. As Respondent contends, despite the designation of J. P. Malone as project manager with respect to construction of the Home, the weight of the credible evidence establishes that the functions and duties of J. P. Malone with respect to the Home were those of a general contractor. Therefore, it is determined for purposes of this proceeding, that J. P. Malone was acting as the general contractor for construction of the Home. Despite the above finding with respect to J. P. Malone activities, Respondent could not rely on the change order of the other subcontracts in this instance because after such notification to J. P. Malone, Respondent executed the Contract which specifically provides for Sunland products and that all change orders be in writing. Therefore, it is determined that by changing the material to be applied to the Home, Respondent failed to comply with the terms of the Contract. Sunlife’s owner, Raymond Riley, credibly testified that the sealer Respondent applied to the Home is superior to Sunland’s Sure-Cure sealer that was specified in the Contract because Sunlife’s sealer is water repellent and penetrating while Sunland’s sealer does not penetrate. Mr. Riley also testified that the latex flat paint utilized by Respondent as well as the sealer that was applied met minimum workmanship standards. Mr. Riley testified that he inspected the Home and the block perimeter wall and observed hairline stucco cracks throughout the exterior of the Home and perimeter block wall. According to Mr. Riley, stucco cracks existed in all of the areas where there were signs of fading and blotching. Mr. Riley opined that the cause of the Complainant’s problem had to do with water intrusion through the stucco cracks causing efflorescence . He also observed that Sunland’s’ products were appropriately applied and intact at the Home. Kenneth Lunsford, a qualified expert witness with respect to paint, testified that the blotching and fading that Complainant observed at the Home was due to efflorescence that occurred as a result of stucco cracks throughout the Home. According to Mr. Lunsford, the design of the Home as well as the application of the stucco does not provide for the stucco to expand and contract. Therefore, as a result of that situation, stucco on homes eventually crack thereby providing an avenue for water to penetrate the stucco causing efflorescence. Mr. Lunsford testified that he is familiar with the Sunland and Sunlife products that are the subject of the instant matter, and believes that neither product can prevent efflorescence from occurring but can only delay such occurrence. Mr. Lunsford inspected the Home and block wall and tested those areas. The result of his inspection and tests showed that the paint and sealer applied by Respondent is still intact and not related to the problem Complainant is experiencing. Mr. Lunsford observed numerous cracks and voids in Home and block wall where efflorescence has occurred and noted that areas of the Home that were covered such as the patio did not show any fading or blotching. Mr. Lunsford testified that the paint has not faded. The appearance of efflorescence on the exterior of the paint was adequately shown to be caused by salts leeching out from the stucco material as a result of water intrusion through stucco cracks of the Home and perimeter block wall, resulting in what appears to be blotching and fading of paint.

The weight of the credible evidence established that efflorescence emanating from stucco is a common problem in the Southwest and impossible for a painting contractor and or his materials to prevent in homes constructed in a similar manner as that of the Complainant. The proximate cause for the deficiencies at issue is held to be in the construction, stucco application, and/or design of the Home. These areas are beyond the scope of Respondent’s work, contract, or control. The weight of the evidence of record establishes that the change of materials by Respondent, while not condoned, did not contribute to the efflorescence problems she is experiencing at the Home and that the Sunlife products are equal or better than the Sunland products specified in the Contract.

CONCLUSIONS OF LAW In the construction industry there is a generally recognized principle that is also applied by the Registrar of Contractors under appropriate circumstances, that a contractor who performs work over a surface constructed and/or prepared by another accepts the surface at the time of the subsequent application, based on the opportunity to inspect for visible or obvious defects or flaws before performing such work. However, that principle is not applied so as to impose strict liability on the subsequent contractor if the subsurface should fail or contain inherent properties that may cause damage to the subsequent work if the factors were not visible or readily apparent at the time when the work was performed over the subsurface. In the instant matter, the weight of the credible evidence established that the paint and sealer applied by Respondent to the Home was intact and that efflorescence appearing on the surface of the paint caused the appearance of blotches and fading. However, the preponderance of the evidence established that efflorescence was a naturally occurring situation that resulted based on salts leeching through stucco cracks and that such condition was not caused by the work performed by Respondent. Without Complainant’s consent, Respondent changed the materials to be applied to the Home as set forth in the Contract by using another manufacturer’s product. In this instance, the weight of the credible evidence established that the product and materials substituted by Respondent were of the same or of superior quality than that set forth in the Contract. Therefore, it was not shown that the Complainant has been damaged by Respondent’s substitution of materials. The testimony and evidence presented failed to sufficiently demonstrate that Respondent violated the provisions of A.R.S. §32-1154(A)(7),(23) and (3) namely, A.A.C. R4-9-108.

RECOMMENDED ORDER Based on the above, it is recommended that the Citation and Complaint issued in this matter be dismissed. Done this day, December 13,1999

______________________________________ Lewis D. Kowal Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________

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