ALJDEC

99F-M1376-ROC · Registrar of Contractors · 2000-05-05

HEARING: March 21, 2000. APPEARANCES: Brad Hunter appeared on his own behalf. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ This matter was heard on March 21, 2000 and Respondent failed to appear. The record was held open until April 20, 2000 in order to let Complainant submit additional evidence. The issue here is whether Respondent violated A.R.S. § 32-1154(3) and (7) by failing to perform in a workmanlike manner and by the doing of a wrongful act that resulted in the complainant homeowner being substantially injured. Respondent’s workmanship on the stucco with regard of the subject home fell below the minimum standards set by the Registrar of Contractors and resulted in substantial injury to Complainant. FINDINGS OF FACT 1. Complainant Brad A. Hunter (the “Complainant”) is the owner of a home located at 5135 E. Lost Dutchman, Apache Junction, Arizona (the “Home”). 2. Respondent David Derka (the “Respondent”) is the owner and qualifying party of Derka’s Stucco. The Respondent is licensed as a plastering contractor. 3. In February of 1998, the parties entered into a written contract for the Respondent to stucco and finish the exterior walls of the Home. Complainant had specifically contracted with Respondent for colored stucco, that is, stucco that had the coloration mixed into it so that the stucco would not have to be repainted. 4. Complainant had earlier filed a complaint (99-M0209)regarding the stucco finish on the north wall of the home including improper application of the stucco. Subsequent to the filing of that earlier complaint, additional problems developed with the remainder of the stucco on the home, including fading of the color with resultant inconsistent coloring in the home’s finish, spider web cracking of the finish, and efflorescence appearing through the cracks and running down the walls. As a result, the instant complaint was filed. 5. Complainant was unsuccessful in having the instant complaint joined with the earlier complaint. The earlier complaint was litigated and a decision rendered in April, 1999. 6. At the hearing in this matter, photographs were introduced showing the poor quality of the stucco with respect to the inconsistent color, the spider web cracking, and the efflorescence coming through the cracks resulting in further discoloration to the finish. From the testimony of the ROC inspector, Mr. Jim Walsh, the testimony of the Complainant, and the photographs, the problems specific to the complaint in this case demonstrate workmanship that is far below the minimum level of workmanship set by administrative regulation R4-9-108. Indeed, the quality of the stucco work in this case, in conjunction with the testimony of the witnesses, establishes with certainty that Respondent knew or should have known that he did not possess the requisite expertise to apply the colored stucco. 7. Complainant testified that because of the poor finish of the stucco, he will now be forced to paint his home every five to ten years. In addition, Complainant submitted a bid and other documentary evidence from a licensed painter indicating that the cost of repainting the home will be $4,500 and the home will need to be repainted every 10 to 12 years. Complainant had specifically contracted with Respondent to have a colored stucco applied so that Complainant could avoid the need to repaint the house in this manner. 8. Respondent’s two year complaint history has been reviewed and no other complaints, except the earlier complaint resulting out of the same stucco job, have been found. 9. The undersigned has carefully reviewed and considered Respondent’s complaint history and the damages that have accrued to Complainant as a result of Respondent’s substandard work in fashioning the recommended order in this case. CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 2. Arizona Revised Statute § 32-1154 (A)(3) provides that a contractor shall not “violate any rule adopted by the registrar.” Arizona Revised Statute § 32-1154(A)(7) provides that a contractor shall not commit “a wrongful or fraudulent act . . . resulting in another person being substantially injured.” A.A.C. R4-9-108 states that “[a]ll work shall be performed in a “professional and workmanlike manner.” 3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #6. 4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #6, 7, and 8. 5. The undersigned Administrative Law Judge concludes that grounds exist to suspend the Respondent’s Class C-36 license pursuant to A.R.S. §32- 1154. 6. Arizona Revised Statute § 32-1154(B) permits the imposition of reasonable specific conditions as part of a license suspension. See also, Sunpower of Arizona v. Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). The purpose of Title 32 is to “regulate the conduct of those engaged in the business of contracting so as to discourage certain bad practices which might be indulged in to the detriment of the public.” Sun Power, supra, 166 Ariz. At 440, 803 P.2d at 433, citing Security Insurance v. Day, 6 Ariz. App. 403, 406, 433 P.2d 54, 57 (1967). 7. It is both factually and legally appropriate for the Registrar to order imposition of a specific condition that Respondent pay to Complainant the amount of $9, 000.00 (the minimal cost of repainting the home once every 10 years over the next twenty years) to compensate Complainant for the additional direct costs he will incur in painting and maintaining the stucco as a result of Respondent’s poor workmanship. Sunpower, supra. It is clear from the evidence that Complainant intends at this time to remain in the home for the rest of his life. It is equally clear that as a direct result of Respondent’s poor workmanship, Complainant will incur at a minimum the above stated amount in order to maintain the appearance of his home. Once the right to damages has been established, uncertainty as to the amount of damages will not preclude recovery. Broadway Realty & Trust v. Gould, 136 Ariz. 236, 238, 665 P.2d 580, 582 (App. 1983). Here, by ordering Respondent to pay the amount of $9,000 dollars, the purposes of the Chapter 32 will be vindicated, namely, Respondent will be discouraged from undertaking work which he quite clearly knows or should know he is incapable of performing. RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Registrar’s order, the Class C-36 license of Respondent shall be suspended until the Registrar receives proof that Respondent has paid or tendered to Complainant the sum of $9,000.00 . It is further recommended that if Respondent pays or tenders the above stated amount to Complainant on or before the effective date of the Registrar’s final order, then the entire Citation and Complaint in Case No. 99-M1376 shall be closed. Done this day, May 10, 2000.

______________________________________ Gregory L. Hanchett Administrative Law Judge . . .

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

-----------------------

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