ALJDEC

00F-2344-ROC · Registrar of Contractors · 2000-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 19, 2000. APPEARANCES: David C. Noble, Complainant; Daniel and Kimberly LaVelle, Respondent’s representatives; Denise Y. Milner, witness; and Robert Mechsner, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ The primary cause of this Complaint was a misunderstanding between the parties. Neither party understood that Complainant is not entitled to dictate to Respondent in what manner he completes his contract. The ensuing arguments caused a rift that resulted in Respondent abandoning the job. I recommend that Respondent be required to complete the job to avoid a potential three week suspension. He should not be required to paint over areas that the Complainant has painted. He should not be required to complete the job if Complainant interferes in any way with his work. If Complainant does interfere, the job should be considered complete. Once the job is complete or considered complete, I recommend that the Registrar of Contractors impose a sixty day probationary period and a civil penalty of $150.00. FINDINGS OF FACT 1. Complainant, David C. Noble, is a general contractor who hired Respondent, Colors Plus Painting to paint the outside of a home with a new addition. The painting job required painting over the original block on the home as well as painting new block on the addition, a block wall around the yard and a wrought iron fence. The contract provided that preparation would include priming all new wood and block with Dunne and Edwards “primer and paint”. 2. Respondent used paint as primer on some of the areas he painted. Complainant argues that paint cannot be used as primer because of “effervescence”. When asked to clarify, Complainant stated that he was not referring to efflorescence but “effervescence”. This general contractor stated that primer of the type specifically recommended by the manufacturer was necessary to avoid “effervescence”. 3. Respondent disputed that a specific primer was needed. He testified that as an experienced painter, he knows that primer is simply and bottom coat of paint or primer. In some areas he used paint as the undercoat, to no detriment to Complainant. He abandoned the job because the homeowner was leaving him notes telling him how to do the job, and Complainant was arguing with him and requesting extras, and this bothered him. One of the homeowner’s notes requested that he use a roller and add another coat of paint to a wall so that it would more closely match the paint on the older section of the home (although she testified that the reason for the request was that there was no primer). Respondent argues that rolling on paint, which is very time-consuming, or using a specific primer was not provided in the contract. They also disagreed about what areas should be caulked. 4. After Complainant filed a Complaint with the Registrar of Contractors on March 31, 2000, Registrar of Contractors Inspector Robert Mechsner conducted a job site inspection on May 8, 2000. He found that the job was not finished and some items needed to be fixed. He did NOT find that there was a lack of priming on the job. He issued a Corrective Work Order on May 9, 2000. Respondent went to the job site to do the corrective work. When he arrived, the homeowner had left more notes for him on how to do the work. He got angry and left and did not complete the Corrective Work Order. 5. It should be noted that Complainant did some painting and/or priming after Respondent left the job because there was exposed wood and the home did not look good. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The applicable rule in the Arizona Administrative Code in this case requires contractors to meet minimum workmanship standards in completing their contracts. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 7. In this case, the Complainant has not established that Respondent violated the terms of the contract by using paint as primer. He has not established that anything that Respondent did would cause “effervescence”, or efflorescence either. The evidence did establish that Respondent abandoned the job and did not complete the Corrective Work Order. In doing so, he violated the above statutes and is subject to the appropriate discipline to his license. 8. Neither party to this case seemed to understand that once the contract was made it was Respondent’s responsibility to fulfill its terms. It was not up to Complainant or the homeowner to dictate to Respondent how he completed his work. Respondent did not seem to understand that he could complete his job without paying any heed to Complainant’s notes or orders and he would not be in violation of any rules of the Registrar of Contractors so long as the work fulfilled the terms of the contract and met minimum workmanship standards. Respondent should also understand that he may encounter difficult personalities in the course of his work but that, unless he is excluded from the job site, he will still have the responsibility to complete his work to minimum workmanship standards. While it is desirable from a business perspective to have satisfied customers, Respondent is not required to let them dictate how the work is done nor does he have to meet their personal subjective standards unless his contract says so. Since it was Respondent’s first job with a brand new Registrar of Contractors license, any discipline associated with his lack of understanding of the above should be mitigated this one time. 9. Despite the fact that Mr. Mechsner recommended that the parties not have to deal with each other in the future, it is important for Respondent’s sake that he not abandon his first job as a licensed contractor. Therefore, with some caveats, I recommend a provisional suspension of Respondent’s license (a suspension that will only take place if Respondent fails to meet the requirements set forth by the Registrar of Contractors’ Order), a short probationary period and a $150 civil penalty. The caveats must be that Respondent not be required to paint over areas where Complainant has painted or primed. To order Respondent to paint these areas would require him to accept the surface there and be responsible for possible peeling there in future. (It is recommended that Respondent take pictures of these areas prior to beginning his work in order to avoid arguments about which areas may be left unpainted by him. He may also request a courtesy inspection from the Registrar of Contractors, if appropriate, either before or after the work is complete.) The other caveat is that Complainant must not interfere with Respondent’s completion of the job. Any interference, including denial of access or arguing with him at the job site, should be considered tantamount to Respondent’s fulfillment of the contract and, upon notice of such interference to the Registrar of Contractors, no suspension should take place. RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, (thirty-five [35] days after the date of mailing by the Registrar of Contractors) that Respondent’s Class K- license be temporarily and actively suspended for three weeks unless the Registrar of Contractors receives confirmation from the Respondent that he has completed the work ordered in the Corrective Work Order and has completed the rest of the painting of the job except for the part that was painted by the Complainant, which Respondent is not required to paint over. It is further recommended in addition to the foregoing license suspension, if any, that Respondent’s Class K-34 license shall be placed on disciplinary probation for a period of sixty days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $150.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, September 20, 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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