ALJDEC

00F-2199-ROC · Registrar of Contractors · 2000-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2000 APPEARANCES: Complainant appeared through its administrative manager, Gloria Carpenter and Respondent appeared through one of its partners, Andrew Skinner. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant retained Respondent for the purpose of providing specified painting related services for its commercial building. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. The building in question has a dash stucco finish. At the time Complainant sought a bid from Respondent to paint said structure there were significant cracks in the stucco finish. In addition, an existing sign was to be removed which would leave a number of holes in the stucco finish in the area wherein the sign had originally been installed. b. On or about July 29, 1999 Respondent submitted a written proposal to Complainant for the painting of the building. Among other things, said proposal provided that “cracks and repairs to be effected so as to match as closely as possible the existing stucco finish.” c. On November 2, 1999 Complainant sent Respondent a letter in response to his July 29, 1999 proposal, indicating that it was willing to contract with Respondent and setting forth the terms of the contract, again repeating the language in Respondent’s proposal that, “cracks and repairs to be effected so as to match as closely as possible the existing stucco finish.” d. On or about November 8 and 9, 1999 the parties accepted and signed the above-described July 29, 1999 and the November 2, 1999 letters for the apparent purpose of demonstrating that they were binding themselves to the terms contained in said documents. e. The paint project was completed by Respondent in mid December 1999. Shortly after examining Respondent’s work on the project, Complainant believed that said paint job was substandard based on finding, among other items, paint on windows, caulked areas that were not painted, cracks not filled, unevenness of the paint application, inadequate surface preparation, inadequate paint coverage, and highly visible stucco repairs under the paint. f. Based on the fact that the parties were unable to resolve their differences, regarding the adequacy of the work performed by Respondent, Complainant contacted the Registrar of Contractors, requesting a courtesy inspection. g. A courtesy inspection was performed by an inspector for the Registrar of Contractors and said inspector determined that the there were a number of deficiencies, in the paint work provided by Respondent, which should be corrected. Respondent did not agree with the results of the courtesy inspection. Thus, Complainant filed the instant formal complaint with the Registrar of Contractors.

3. The contract price was for $8,000.00. It was undisputed that Complainant only paid Respondent the sum of $6,000.00. However, it was shown that on April 21, 2000 Complainant paid Sunstate Equipment Co. (“Sunstate”) the sum of $2,047.46 to release their lien on the property. The lien was filed by Sunstate due to Respondent’s failure to pay them for the power lift that it had rented in order to paint Complainant’s three (3) story office building.

4. Respondent testified that he was waiting to receive the $2,000.00 balance from Complainant before he paid Sunstate. Contrary to Respondent’s position, Sunstate was his supplier and he had a duty to pay the rental fee to Sunstate, regardless of whether or not he was paid in full by Complainant. Said rental agreement was not contingent upon Respondent receiving payment from the owner of the project. Respondent’s failure to pay Sunstate for the rental of the power lift is deemed to be a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

5. The weight of the evidence of record was sufficient to support a finding that the following constitute existing substandard and unacceptable workmanship, in violation of the applicable charged sections of the State’s Contracting laws, and same are found to be attributable to Respondent:

a. Paint application is blotchy and streaked. In addition, the paint applied over an attempted repair in a specified area fails to adequately match the original paint applied by Respondent. Over-all the paint application is uneven. b. Specified areas of the stucco and repaired areas did not receive any paint application. c. Original paint is bleeding through on certain areas of the building. d. Areas of the metal fascia on the carport are peeling. e. A number of stucco cracks were not repaired. f. Holes from the original sign for the building, which had been removed, are visible. g. A number of repairs in the stucco are highly visible.

6. In addition to the foregoing deficiencies in Respondent’s work, it is also determined and held that Respondent left excessive amounts of paint over-spray on the windows of the building. However, the following facts regarding why Respondent did not clean the windows are very important to note: a. Shortly after completing the project, Complainant apprised Respondent of the problem with the windows. Although Respondent indicated to Complainant that it had been unaware of the paint on the windows when it left the jobsite, Respondent expressed a willingness to clean the windows. b. In this regard, Complainant sent Respondent a letter advising that it would not be allowed to clean the windows in question “until you have demonstrated to me that you are experienced and qualified at removing paint from windows using steel wool and razor blades.” c. Other than being an experienced painter, Respondent had no idea how it could prove that they were qualified to remove paint and thus, in total frustration did nothing in this regard. d. It needs to be noted, that at this point in time the working relationship between the parties had totally deteriorated. e. Complainant ultimately hired others, at a cost of $800.00, to have the windows cleaned.

7. It is not abnormal, notwithstanding reasonable attempts to mask off areas not to be painted, that some degree of paint over-spray may get on such areas. It is almost axiomatic that part of the skill required of a painter is the ability to clean paint over-spray or splatter from window areas. Moreover, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work, without requiring that he supply references or other means of proving his competence to accomplish such remedial work.

8. Complainant is found to have been unreasonable in its demands regarding preventing Respondent from cleaning the windows until such time as it could prove experience and competence in said area of the paint trade. Although the paint on the windows should have been removed prior to the time that Respondent indicated it had completed the project, under all of the facts and circumstances presented herein, regarding the paint over- spray on the windows, Respondent was not shown to have violated the spirit and intent of the State’s Contracting laws. Thus, Respondent should not be held responsible for the costs that Complainant incurred to pay others to clean the windows.

9. Subsequent to the filing of the instant complaint, a jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. The following facts were adduced at the hearing, regarding Respondent’s attempt to comply with the terms and conditions of the Agency directive:

a. The above-described Agency directive (“Corrective Work Order”) was issued April 14, 2000 and allowed Respondent fifteen (15) days to complete the ordered remedial work. b. During the aforementioned fifteen (15) day period of time, Respondent made contact with Complainant, regarding their intent to perform the necessary corrective work. However, in this regard, Respondent advised that it would have to bring heavy equipment onto the property, including another power lift. c. In light of the fact that Complainant had received a lien on the property from the prior power lift supplier, it would not allow Respondent to bring another power lift onto the property without a lien release. d. Respondent testified that it paid for this subsequent power lift rental with a credit card and that the rental company would not issue a lien release since they felt they had no basis to issue a “preliminary lien notice.” Respondent’s representations in this regard were not satisfactory to Complainant and therefore, Complainant effectively prevented Respondent from bringing the second power lift onto the property. e. Notwithstanding Complainant’s refusal to allow another power lift on the property, Respondent attempted to perform a small degree of the corrective work on the portions of the building that could be accessed without the power lift. Due to the fact that the repairs to the stucco were proving to be difficult for Respondent to accomplish and the fact that he had no way of painting and repairing the upper portions of the building without the power lift Respondent, in utter frustration, terminated work on the items in the Corrective Work Order, without complying with all of the terms and conditions set forth therein.

10. Evidence of record supported a finding that even some of the corrective work performed by Respondent, in his response to the Corrective Work Order, remained substandard and unacceptable. It is determined and held that Respondent’s failure to substantially comply with the terms and conditions of the Corrective Work Order constitutes a violation of the applicable charged section of the State’s Contracting laws. However, under all of the facts and circumstances presented herein, no civil penalty appears to be warranted.

11. Respondent contends that repairs to dash stucco are beyond its area of expertise and that it had verbally explained this to Complainant, prior to commencing work on the project. Notwithstanding this claim, there is nothing in the applicable contract documents that would serve to constitute an adequate and proper disclaimer referable to the fact that Respondent was not going to repair the dash stucco surface prior to painting. Moreover, as set forth in the foregoing findings of fact, the contract documents indicate that Respondent was going to repair the stucco. Complainant denies ever having any discussion with Respondent, which would indicate that Respondent was not going to repair the stucco.

12. Disclaimers of liability are frowned upon in the law as being contrary to public policy. For a disclaimer to have any enforceability, it must be clearly established by substantial evidence that the matter being disclaimed was so carefully explained and accepted that little doubt remains as to the intent of the parties.

13. In the instant matter Respondent failed to provide evidence which is persuasive to adequately establish that the intent of the parties was to clearly pass the responsibility for proper repair and preparation of the stucco surface, prior to painting, onto Complainant. Without such clear and unambiguous contract language, which is clearly accepted by written acknowledgment of the owner, a contractor should refuse to perform construction work that is reasonably calculated to result in substandard workmanship.

14. It is determined and held that not only did the applicable contract language require Respondent to repair the stucco prior to painting but, in addition, by virtue of painting the building, Respondent effectively accepted the dash stucco surface as being adequate to support a workmanlike result and, as such, is estopped to assert that it has no responsibility for the inadequacy of his paint job due to the nature of the stucco problems underneath its painting work.

15. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to attempt any further stucco repairs on this building. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work, as a means to reduce or eliminate otherwise appropriate disciplinary penalties, should include the requirement that Respondent cause a properly licensed stucco contractor to repair the stucco, as needed, prior to any further painting remedial work being performed by Respondent.

16. Although this Tribunal is mindful of Complainant’s concerns regarding having any further liens placed upon their property, they must refrain from any unreasonable denial of access, which effectively prevents Respondent from complying with the terms and conditions of the Order entered in this matter.

17. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class L-34 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has caused a licensed stucco contractor to properly repair and prepare the dash stucco surface on Complainant’s building for re-painting and after the stucco surface is prepared then Respondent shall accomplish appropriate and effective remedial work on all of the paint deficiencies set forth in the foregoing Findings of Fact. In addition, upon completion of all required remedial work, Respondent shall provide Complainant with written proof that all subcontractors and suppliers, involved in accomplishing the corrective work, have been paid in full. Any unreasonable denial of access by Complainant, which effectively prevents Respondent or its subcontractors from accomplishing this remedial work, shall be deemed to be tantamount to Respondent’s compliance with the Order entered in this matter. It is further recommended that if Respondent accomplishes the above- described corrective work or is denied access to perform same on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class L-34 license be placed on a period of 60 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later.

Done this day, August 10, 2000

______________________________________ Mark A. Silver 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 ___________________________

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