ALJDEC

00F-0421-ROC · Registrar of Contractors · 2000-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2000

APPEARANCES: Chris Cataldo, General Manager, appeared on behalf of Complainant; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Monument Homes brings this action regarding Respondent’s interior painting and door finishing as a subcontractor for Complainant at a house built in Scottsdale, Arizona. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. Having considered Complainant’s evidence and testimony presented at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order of provisional revocation. FINDINGS OF FACT 1. In the summer of 1999, Complainant hired Respondent as a subcontractor to do interior painting and doors for a residence Respondent was building. Respondent performed poorly and did not complete the job. Because of the poor workmanship and incomplete work, Complainant filed a complaint with the Registrar of Contractors (ROC) in August 1999. 2. On September 27, 1999, ROC Inspector Bob Mechsner observed the interior painting and door finishing work that Respondent had done. He found that the painting work was poorly done and was not finished (Respondent admitted that day that the work was unfinished) and that the natural wood doors were off color; the finish too glossy; there were too many runs, sags, and bumps in the finish; and that the edges of the doors (tops, bottoms, and some sides) were not stained or finished even though they had been hung. He issued a Corrective Work Order (CWO) on October 6, 1999, directing Respondent to complete the project in a workmanlike manner and correct the problems with the doors. He noted that Complainant agreed to pay Respondent another $100.00 for materials to finish the job. 3. At a pre-hearing inspection on April 10, 2000, Inspector Mechsner found that much of the painting work had been corrected (some by Respondent, some by another contractor hired by Complainant) and that most of the doors had been corrected by another contractor hired by Complainant. However, there are still unfinished edges on doors in the house. (Exhibits 5, 6, and 7.) 4. Complainant submitted evidence showing that anther company was hired and repaired eight of the doors for $2080.00. (Exhibits 1 and 2.) That work was done in January 2000. Complainant also bought labor and materials to repair the painting work in November and December 1999, that amounted to $598.60. (Exhibits 3 and 4.) Respondent did the remainder of the painting touch-up in December 1999, but has not been back on the site since. All in all, Complainant has spent $2678.60 to correct and finish work that Respondent was to do. Also, the work is not yet fully complete. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has met its burden. 2. Respondent has violated A.R.S. § 32-1154(A)(7), (23), and (3), namely Arizona Administrative Code (A.A.C.) R4-9-108, by failing to complete the job, failing to repair poor workmanship, and failing to comply with the CWO. 3. A review of current ROC records shows that Respondent’s license was suspended for lack of bond on October 29, 1998, and reinstated on May 5, 1999. Otherwise, Respondent has had a license since September 1996 without any disciplinary action. But, the record in this matter shows a licensee who is unable or unwilling to perform in a workmanlike manner. 4. Respondent has substantially harmed Complainant and the homeowner, leaving both high and dry. Such disregard for obligations should not be tolerated. Under the circumstances of this case, this ALJ concludes that the appropriate penalty is revocation, unless Respondent pays restitution to Complainant and hires a competent contractor to finish the work. Also, a civil penalty for failure to comply with the CWO is warranted.

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. . . RECOMMENDED ORDER IT IS RECOMMENDED that Class C-34 license 117548, held by Respondent Guy Dean Fennell dba Arizona Central Paint and Texture be revoked beginning the effective date of the Registrar’s Order. IT IS FURTHER RECOMMENDED that if Respondent pays Complainant $2678.60 and causes another licensed contractor to complete the corrections described in the CWO on or before the effective date of the Registrar’s Order, the license revocation shall not take place. IT IS FURTHER RECOMMENDED that, along with any above-provided penalties, Respondent pay a civil penalty of $250.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

Done this 20th day of April 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of April 2000, to:

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

By ___________________________ -----------------------

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