ALJDEC

00F-2496-ROC · Registrar of Contractors · 2000-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On November 3, 2000, a hearing was held to determine if Respondent Far West Supply Inc. (“Far West”) violated provisions of A.R.S. §32- 1154(A). Complainants Robert and Char Kiel (the “Kiels”), were present, representing themselves. Far West was represented by counsel, James Tanner. Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT During the course of the hearing, the parties stipulated that Mr. Kiel’s wife, Char Kiel, be added as a party to this matter. Therefore, the caption shall be amended to reflect such stipulation. Mr. Kiel entered into two separate contracts with Far West. The first contract was entered into on November 4, 1999. This contract provided for Far West to stain the cement located in the living room, two offices, and a bedroom of the Kiels’ home located at 4731 East Marston Drive, Paradise Valley, Arizona. The contract price was $1,400.00. The second contract was entered into between the Kiels and Far West on December 15, 1999. This contract required Far West to strip and seal saltillo tile throughout the kitchen, den, dining area, and hallways on the south side of the Kiels’ home, as well as the patio. The contract price was $3,280.00. The work concerning the first contract commenced toward the end of November 1999. The work regarding the second contract began in the beginning of December 1999 and proceeded into January 2000. On April 18, 2000, the Kiels filed the instant complaint with the Registrar of Contractors against Far West, alleging certain deficiencies in the staining of the cement and the stripping and sealing of the tile, which are contained in a list of eight items attached to the complaint and are set forth as follows: vi. Cement stain - wrong color; vii. Stain exploded on ceiling damaging whitewash finish; viii. Cement not patched during prep; ix. Furniture storage fees over $1,000.00; x. Saltillo stripping caused mud splash on walls resulting in a cost of $635.00 to re-paint; xi. Saltillo was improperly stripped - slurry and residue were sealed into grout; xii. Kitchen re-stripped - repair of damage - once again baseboards and cabinets destroyed by stripping agent; xiii. Bills received for incomplete work.

The complaint filed by the Kiels indicates that the contract amounts totaled $6,758.00, and that a balance of $2,395.00 remains outstanding. However, the evidence produced at the hearing did not clarify the discrepancy between the amounts indicated on the complaint and the two contract amounts specified above. Far West did not dispute the combined contract amount of $6,758.00, nor did it dispute the remaining balance of $2,395.00. During the course of the instant hearing, the Kiels withdrew their complaints regarding items i. and iii. as enumerated above, both of which concern the staining of the cement. Item number ii. of the complaint, concerns the damage to the whitewash ceiling in the living room caused by the explosion of a stain pump used by Far West during the staining of the cement. Far West removed the stain from the ceiling, however, damage to the finish of the ceiling remains. See Complainant’s Exhibit 7. The Kiels submitted two estimates into evidence, collectively marked as Complainant’s Exhibit 9, indicating that the cost to repair the damage to the ceiling could range from $75.00 to $150.00. Item number iv. of the complaint concerns furniture storage fees incurred by the Kiels due to the work performed by Far West not being accomplished in a timely manner. The undersigned Administrative Law Judge finds that this item of complaint regards consequential damages and therefore, the Registrar of Contractors, acting through an administrative license disciplinary hearing is not the appropriate forum to adjudicate this issue.

The weight of the evidence of record established that Far West caused mud splash to remain on the baseboards, walls, and cabinets in the area where the tile stripping procedure was performed, after the job had been completed, as item number v. of the complaint alleges. Mr. Tom Allen, Far West’s owner, testified at the hearing, that re-painting always needs to be done regardless of how much taping and draping is used, due to the harshness of the chemicals used for stripping the tile. He further testified that he had budgeted for re-painting and that his estimate was approximately $600.00. However, he also testified that he had been informed by the general contractor working on the Kiels’ remodeling project, that the general contractor would take care of the re-painting. The re-painting was not performed and the Kiels paid $635.00 to another contractor to have this paint work accomplished. Item number vi. of the complaint alleges that slurry and stripping residue were sealed into the grout resulting in discoloration and staining of the grout. The documentary evidence supports this contention. See Complainant’s Exhibits 3 and 6. Item Number vii. concerns the re-stripping of the kitchen tile performed by Far West on February 10, 2000, in response to the dissatisfaction expressed by the Kiels’ to Far West. After performing approximately four hours of remedial work, Mr. Kiel instructed Far West to leave the premises due to the sloppy work being performed by Far West. Mrs. Kiel testified that Far West damaged the baseboards and cabinets for a second time. Mr. Allen testified that because the Kiels instructed Far West to cease performance of the remedial work, Far West was unable to complete the repair work, which it contended constituted a denial of access to the jobsite. To the contrary, the weight of the credible evidence established that Far West received sufficient access by the Kiels to attempt remedial work. However, during this inadequate attempt at repair, Far West performed in the same unacceptable manner as in the first instance, and therefore, under all of the salient facts and circumstances presented herein, the Kiels were justified in instructing Far West to cease working. Item number viii. of the complaint concerns invoices that the Kiels had been continuing to receive from Far West regarding the balance remaining on the contract. Mr. Allen testified that invoices are generated automatically for accounting purposes and that he has adjusted Far West’s computer system so that the Kiels will not receive any future invoices. Therefore, the Administrative Law Judge finds that this matter has sufficiently been resolved. A Registrar of Contractors inspection was not conducted due to the necessary repairs to the tile having been accomplished by another contractor at a cost of $3,375.00 to the Kiels. Notice is hereby taken of official Registrar of Contractors licensing records, which reveal that Far West’s contracting license has been suspended since November 23, 1999.[1] Such suspension does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Far West’s existing suspended license status must be considered when determining appropriate penalties in this case. The Kiels not only paid Far West a total of $4,363.00, but have also incurred the additional expense of $3,375.00 for the remedial work to the tile, $635.00 for the painting that needed to be performed, and will expend up to $150.00 to repair the ceiling. A homeowner need not suffer through a series of inadequate or ineffective repair efforts by a contractor. The weight of the credible evidence established that Far West was given a reasonable opportunity to complete the necessary remedial work and failed to do so. Consequently, the Kiels received substandard workmanship, leaving them no choice but to expend additional funds to bring Far West’s work up to industry standards. The Registrar of Contractors’ authority in matters such as presented herein, includes the ability to impose restitution, in whole or in part, as a reasonable condition to reduce any possible disciplinary action against contractors. The exercise of such authority is deemed appropriate in the instant case. Therefore, based upon all the evidence, a reasonable condition in this case would consist of the payment by Far West to the Kiels of $4,160.00 as full restitution for the cost to complete the remedial work to the tile and the ceiling, and the painting of the areas surrounding the tile. Imposing such a condition is more preferable than merely imposing a disciplinary action against Far West’s license without providing a condition to reduce or eliminate same.

CONCLUSIONS OF LAW In this proceeding, the Kiels bear the burden of proving by a preponderance of the evidence, that Far West is subject to discipline for violations of A.R.S. §32-1154(A)(3) and/or (7) as charged by the Registrar of Contractors in its August 15, 2000 Citation and Complaint . A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence §5 (1960). The undersigned Administrative Law Judge concludes that with respect to the above deficiencies and the resultant financial injury sustained by the Kiels, that Far West has violated the provisions of A.R.S. §32-1154(A)(7) and (3), namely A.A.C. R4-9-108. The Registrar may order a restitutionary remedy as part of the Registrar’s regulatory authority to take appropriate disciplinary action against those who violate the licensing laws set forth in A.R.S. §32-1154A (1) through (24), inclusive. An administrative award of damages is not an unconstitutional exercise of administrative authority where due process procedural rights are protected, where the authority to prohibit conduct has been well defined as in A.R.S. §32-1154, and where judicial review is available as provided in A.R.S. §12-901, et seq. Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 803 P.2nd 430 (App. 1990). Based on the foregoing violations, it is appropriate for the Registrar of Contractors to impose discipline against Far West’s license.

RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter, that Far West’s Class C- license shall be revoked until such time as the Registrar of Contractors receives written confirmation that Far West has paid the Kiels the sum of $4,160.00. It is further recommended that if Far West pays the Kiels the sum of $4,160.00 on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Far West’s Class C-05 license shall be placed on active suspension for a period of 5 days followed immediately by a period of disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. Done this day, November 17, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of November, 2000, to:

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

By ___________________________

----------------------- [1] The undersigned Administrative Law Judge believes that the facts of this case warrant an investigation by the Registrar of Contractors to determine whether Far West engaged in contracting activities while its license was under suspension.

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