ALJDEC

00F-2167-ROC · Registrar of Contractors · 2000-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2000 APPEARANCES: Complainant Sharon Wyman appeared, representing herself. No person appeared representing Respondent All Economy Mobile Wash, Inc. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors. Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class K-05 license issued by the Registrar of Contractors (Registrar). This specialized license includes epoxy flooring work. 2. In April 1998, Complainant hired Respondent to clean and epoxy coat the concrete at her carport at her home. 3. The concrete was washed and the coating was applied. Six months later, the coating began to bubble and crack in many areas. 4. Complainant called Respondent, who was defensive and indicated to her that he had not had any problems before. Respondent himself was unresponsive to the matter despite many calls from Complainant. However, Respondent apparently asked the area distributor to go and inspect the situation. 5. At some point, a representative from the area supplier [Arizona Polymer] for the particular coating came to the home and inspected the work and the problems. The representative told Complainant that he felt the surface had not been prepared appropriately, and told her that he would report his findings to the Respondent. 6. When no other work was forthcoming from Respondent, the Arizona Polymer representative referred Complainant to the Registrar. In March 2000, Complainant filed a formal complaint with the Registrar alleging complaints against Respondent’s work: the polymer seal job had not held up, had bubbled and peeled despite a five year warranty. Complainant indicated that she had exhausted all patience with Respondent, who did not return phone calls. 7. As a result of receiving the complaint, Registrar’s Inspector (Inspector) Joe Cotton scheduled a site inspection. Respondent did not attend the job site inspection. 8. On April 5, 2000, a Corrective Work Order (CWO) was issued indicating that the sealant had failed in several areas and that the Respondent was to correct. Respondent was required to make corrections within fifteen days. 9. Corrective work was done at the carport in June 2000. Polymer sealant was reapplied without any other preparation work. The new sealant was the same color but a very different shade of that color - green. At a re-inspection in June 2000, the color was darker than that of the first coating, the color was not uniform, and there was cracking of the coating at the concrete section cracks. 10. On June 22, 2000, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.23, and 32-1154.A.3, specifying rule Arizona Administrative Code (A.A.C.) R4-9-108. 11. A default Decision and Order was issued by the Registrar, but the Decision was quashed on discovery of the filing of Respondent’s written answer to the Citation and Complaint. On July 6, 2000, Respondent filed its written answer, indicating several things. Respondent stated that Complainant had called complaining of poor results from her own application of certain product and requesting solutions. Respondent stated that they discussed solutions, and then Complainant hired them to remove the old paint, and to seal with a two-step epoxy polyeurathane (sic) coating system from Arizona Polymer. Respondent stated that they had discussed a warning about irrigation and irregular landscaping would cause the seal to bubble or peel in areas, just like her previous paint. Respondent stated that the problem in this matter was the Complainant’s refusal to correct the underground irrigation problem, and stated that no product will stay applied to that surface for an extended time. Respondent also stated that Complainant would not return calls from Respondent. 12. The matter remained unresolved, and was forwarded for formal administrative hearing. The Registrar issued its Notice of Hearing in the matter on July 28, 2000. At the time set for hearing, no person on behalf of Respondent arrived for the hearing which had been scheduled. 13. The Registrar’s Inspector’s testimony was that, at the time of the job site inspection, about ninety square inches of paint/coating was lifting or bubbling or peeling over the area. The Inspector’s testimony was that at re-inspection he found inconsistent color and cracks. The Inspector testified that the paint chips which had lifted showed the beige base or adhesive coat and the top coat of epoxy and the second layer of epoxy, and that he could see the unprepared concrete surface underneath. The Inspector testified that the paint chips came up showed residue coming up with the adhesive or base coat, and that showed the surface had not been properly prepared - with a steam clean to remove any remaining dirt or residue even after an acid wash. The Inspector testified that he had looked for any evidence of the Complainant having attempted to apply some finish and could see none. The Inspector testified that the yard was not irrigated, but in his opinion was sprinkled and that the carport was about four inches above the yard. The Inspector’s testified that he called the Respondent after the re-inspection, and that Respondent was unwilling to do any correction but was willing to go to hearing on the matter. 14. Photographs taken by Complainant show the bubbling and peeling of the coating in random area. Complainant testified that Respondent had used an acid wash (she remembered the smell) on the previously bare concrete before applying the base and the epoxy coating. Complainant testified that Respondent had filled in the existing concrete cracks before the original application, and indicated that the coating was not generally lifting in those areas (except for maybe one place). Complainant testified that the paint is not lifting in areas where the car tires sit, but is lifting very randomly. Complainant testified that she did not know of the preparation steps taken at the time of the June 2000 corrective work, and that when she returned home that day the work was done. Complainant believes that for this situation to now be corrected, the two coats of epoxy will have to be removed and the surface prepared before it can be redone. 15. A respondent is required to appropriately and properly repair items as noted on Registrar’s CWO, absent proof that the CWO direction is inaccurate, inappropriate or unnecessary. 16. Based on the evidence and testimony of record, it was shown that the epoxy coating work done was not properly installed, and the demonstrated problems of bubbling, cracking and peeling of the coating continue to this date. It is determined that the record reflects that Respondent has not installed or applied the coating to industry standards.

APPLICABLE LAW A.R.S. §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: … 3. Violation of any rule adopted by the Registrar.[1] … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

CONCLUSIONS OF LAW 1. Respondent’s written answer contains factual statements that are not accurate, and contains no defense to the allegations made by the Complainant and cited by the Registrar. Respondent did not attend the hearing to present any testimony or evidence with regard to his written statements. 2. The evidence presented at hearing clearly shows the alleged problems with the work, both the original and the corrective work, done by Respondent. Complainant has shown sufficient proof of cited alleged statutory violations. Therefore, it is determined that the evidence and testimony at the hearing established violations, by Respondent, of A.R.S. §§32-1154.A.3, 32-1154.A.7 and 32-1154.A.23, and A.A.C. R4-9-108. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Respondent’s Class K-05 License No. 146138 be suspended on the effective date of the Registrar’s Order in this matter. IT IS FURTHER RECOMMENDED that if Respondent accomplishes the needed corrective work himself or through the work of another appropriately licensed contractor, and the parties so notify the Registrar on or before the effective date of the Registrar’s Order in this matter, that the aforementioned license suspension shall not take place. IT IS FURTHER RECOMMENDED that, in addition to the foregoing license suspension, if any, that Respondent’s Class K-05 License No. 146138 be placed on active suspension for a period of two days, followed by a period of 15 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Registrar’s Order or the date on which Notice of Respondent’s compliance with the terms of the Registrar’s Order is filed with the Registrar, whichever is later. RECOMMENDED this day, October 25, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Transmitted by mail this _____ day of _______________, 2000 to:

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

By ___________________________ ----------------------- [1] Specifically, A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827