ALJDEC

99F-T0232-ROC · Registrar of Contractors · 1999-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|MR. AND MRS. MIKE MATZ, |§| | | |§|CASE NO.: T99-0232 | |Complainants, |§| | | |§|DOCKET NO.: 99F-T0232-ROC | |-v- |§| | | |§|RECOMMENDED | |License No.051365, Class B- of |§|DECISION AND ORDER | |CIMMARON CIRCLE CONSTRUCTION COMPANY|§| | |(Corp.), |§| | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| | | |§| |

HEARING: June 21, 1999, at 8:30 a.m., and September 8, 1999, at 8:30 a.m. APPEARANCES: The Complainants appeared through their attorney, Sally Darcy. The Respondent appeared through its attorney, Ross Johnson. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on June 21 and September 8, 1999. The Complainants appeared through their attorney, Sally Darcy, and the Respondent appeared through its attorney, Ross Johnson. 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. The Respondent is the holder of a Class B- License issued by the Registrar of Contractors.

2. This is a residential matter where the Respondent constructed a new residence for the Complainants. Straw bales were utilized in the construction of the perimeter walls of the new residence.

3. During the course of construction the parties had numerous confrontations regarding workmanship standards and construction techniques and the parties’ personal relationship deteriorated rapidly.

4. Credible evidence established that as the new residence neared completion the Complainants had lost faith in the Respondent’s abilities as a contractor and designer and were increasingly dissatisfied with the Respondent’s construction of the residence.

5. When the residence was tendered to the Complainants as a completed structure, the Complainants had a long list of “walk-through” type of complaints.

6. As part of the closing process the parties entered into a written settlement agreement in an attempt to resolve their differences and end their relationship.

7. Paragraph 7 of the written settlement agreement provides as follows: “At 5:15 p.m. on December 11, 1996, Douglas Staples, as president of Cimmarron, and Matz shall conduct a final walk-through inspection of the residence at the property for the purposes of identifying other corrective items to be fixed by Cimmarron, in addition to those set forth in this settlement agreement. Cimmarron shall correct those items promptly.

8. Paragraph 8 of the written settlement agreement provides as follows: “Cimmarron acknowledges that Matz reserves all of its warranty rights and claims against Cimmarron and all other persons and entities with respect to the construction of the residence at the property, and that Matz does not waive any such warranty rights or claims to any extant or degree. Notwithstanding the foregoing, Matz waives all rights to pursue matters against Cimmarron with the Arizona Registrar of Contractors or otherwise except for (a) any defects in construction that shall become known to Matz from or after the inspection described in paragraph 7, and (b) the failure of Cimmarron to perform its agreements set forth in this settlement agreement. Matz shall furnish Cimmarron with written notice of all warranty claims and, except in the case of emergency, Cimmarron shall have 30 days to remedy the defective work. Only if Cimmarron shall fail to do so may Matz file a complaint with the Arizona Registrar of Contractors or otherwise.”

9. Credible evidence established that the parties did not conduct a walk- through on December 11, 1996, but that the Complaints, in accordance with the Respondent, instead submitted several, lengthy, walk-through lists of unacceptable workmanship, or incomplete, items to the Respondent for appropriate corrective action by the Respondent.

10. The Complainants also began to notice cracking in the exterior stucco of the residence.

11. The Complainants had the exterior of the new residence inspected by an alternative contractor. The alternative contractor noted that several areas of straw bales located in the perimeter walls had been saturated with water and were decaying.

12. The Complainants notified the Respondent of the alleged problems and requested the repair of all of the items.

13. The Respondent failed to respond promptly and failed to correct the complained of items.

14. The Complainants were dissatisfied with the Respondent’s workmanship and failure to correct all of its work despite repeated demands that it do so. The Complainants then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

15. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted several on-site inspections and issued two written corrective work orders directing the Respondent to perform designated corrective work on the Complainant’s residence.

16. Credible evidence, produced at hearing, established that the Respondent failed to comply with the terms and conditions of the written corrective work orders.

17. Credible evidence, produced at hearing, established that the exterior stucco on the residence has failed and that the exterior stucco displays severe and extensive cracking and that the cracks in the exterior stucco, particularly in the parapet areas, have allowed moisture to penetrate into the straw bales within the perimeter walls of the residence.

18. Credible evidence established that the moisture in the straw bales has caused mold and bacteria growth and the decay of the straw bales. This condition is shown to constitute a danger to the health and safety of the inhabitants of the residence and should be promptly resolved.

19. The Respondent did not dispute that the exterior stucco had cracked, or that some of the straw bales had decayed, the Respondent instead asserted that the problem should be resolved by the exterior stucco subcontractor whose work had actually failed.

20. There was no dispute that the exterior stucco contractor was a subcontractor of the Respondent which was functioning as both the designer and the general contractor for the construction of the Complainant’s new residence.

21. Credible evidence established that a general contractor, such as the Respondent, is responsible to its homeowners for the acts and omissions of its subcontractors and has a duty to properly oversee the work and materials actually used in the residences it constructs.

22. Credible evidence established that this responsibility can not be assigned to the homeowner/Complainant on the basis that the defective work was actually performed by a subcontractor rather than the general contractor.

23. The Respondent shall promptly remove and replace all decomposing/ wet/ moldy straw bales in the Complainants’ residence.

24. Although sharply disputed, credible evidence established that the use of straw bales above the roof line in parapets is allowed by applicable code standards. It is not recommended but it is within current code requirements to utilize straw bales for parapet construction.

25. Credible evidence established that the use of 90 pound felt is an acceptable building material to apply over straw bales to protect the straw bales from moisture and that it was the substantial equivalent of the rubber material specified in plans and specifications. However, credible evidence also established that the felt application failed to protect the straw bales from the amount of moisture that was allowed into the straw bales from the improper construction of the parapet tops and cracks in the stucco. The Respondent shall properly correct the water proof covering on the straw bales in the parapet area to protect the straw bales against moisture penetration.

26. Credible evidence, produced at hearing, established that the following items, in addition to the decaying straw bales, constitute unacceptable or incomplete workmanship and require appropriate corrective action by the Respondent:

aa) The tops of the parapets were not constructed in accordance with plans and specifications. The Respondent shall reconstruct the parapet tops, ensuring that the tops of the parapets are rounded and shed water in accordance with plans and specifications.

ab) The previous exterior stucco repairs on the residence are not the same color as the surrounding exterior stucco. After the removal and replacement of the decaying straw bales, which will necessitate a partial removal and replacement of the exterior stucco, the Respondent shall properly cause all exterior stucco repairs to be properly blended in with the exterior of the residence. If an acceptable blending can not be achieved then the Respondent shall cause the entire exterior of the residence to be re-colored.

ac) The corrective work on the light fixture in the north patio area has not been completed. The Respondent shall properly complete the corrective work on the light fixture including the color touch-up of the surrounding stucco.

ad) The corrective work on the rear porch lid has not been completed to within applicable industry standards. The Respondent shall properly complete the repair of the rear porch lid, including the removal of the remaining staples and the proper touch-up of the filler used to repair the holes left from prior staple removals.

ae) There is unacceptable concrete spillage and construction debris present around the footers and walls of the residence. The Respondent shall properly remove the concrete spillage and construction debris.

af) There is still construction debris present in the yard area surrounding the residence. The Respondent shall remove all construction debris from the yard area surrounding the residence.

ag) The ponding in the driveway has been corrected to within industry standards but the patches do not match the surrounding asphalt driveway. The Respondent shall properly touch up the patches.

ah) The paint on the mechanical room doors does not comply with minimum industry standards. The Respondent shall properly correct the painting on the mechanical room doors.

ai) There are still air leaks in the freon tubes for both HVAC system. The Respondent shall properly correct the leaks.

aj) There are still gaps between the windows and the vigas in the dining room of the residence. The Respondent shall properly correct the gaps between the windows and the vigas in the dining room.

ak) There is still unacceptable water ponding in both of the mechanical room yards. The Respondent shall properly correct the grading in the mechanical room yards.

al) There are small areas of the residence which still do not have the code requirement separation between the earth and wall. The Respondent shall properly correct the areas ensuring that the code requirement is complied with.

am) The areas of repair under the scuppers have not been touched up to match the surrounding roofing. The Respondent shall properly touch up the scupper repairs.

40. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class B- License shall be revoked on the effective date of this Order unless the Registrar of Contractors receives proof that the Respondent has properly accomplished the corrective action set forth above in Finding of Fact Nos.23, 25, and 26(a) through 26(m), inclusive.

It is further recommended that if the Respondent properly accomplishes the above described corrective actions, on or before the effective date of this Order, then the above provided License revocation shall not take place and Citation No.T99-0232 shall be closed.

Dated this 24th day of September, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Administrative Law Judge M. Douglas

Original mailed this day of September, 1999, to:

Michael P. Goldwater, Director Attn: Valerie Hicks or Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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