ALJDEC

00F-G0321-ROC · Registrar of Contractors · 2000-05-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 1, 2000 APPEARANCES: Complainant appeared through its president, Robert Ryan and Respondent appeared through its owner, Scott Batchelor. 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. Pursuant to contract, Complainant retained Respondent to provide painting services on a new home construction project. Complainant alleges certain deficiencies in the work performed and/or materials provided and same are discussed in the findings below.

2. Complainant presented a report into evidence from a painting expert. Evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable workmanship attributable to Respondent’s painting work on the project in question:

a. Areas of the interior reveal inadequate or no surface preparation prior to paint application, as manifested by drywall type dust visible under the paint. b. Numerous areas of the interior paint application were applied too thin. c. Areas of the interior painted surfaces reveal paint that lacks a “cohesive quality and scrubbability” due to improper or inadequate paint application. d. The concrete studio floor was painted prior to the time that said surface could be patched to eliminate blemishes in the floor. e. Specified window trim was stained without application of a sealer, resulting in a blotchy appearance to the wood. f. Areas of the exterior wood trim did not receive adequate staining material to protect the wood from the elements. g. There are voids in the exterior paint application. h. Paint touch-up on the exterior walls failed to provide an adequate match to the adjacent areas of the walls. i. There were voids in the caulking and areas where the caulking was applied but pre-maturely evidenced cracking. In addition, a number of window weep holes were plugged with paint.

3. The above-described paint deficiencies are determined to constitute a wrongful act within the meaning of the applicable charged section of said laws. All other enumerated items of the complaint, presented at the instant hearing, were either not found to constitute a prejudicial deviation from plans and specifications or matters upon which Complainant failed to sustain the requisite burden of proof.

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

a. The homeowner of the project in question has previously filed a complaint against Complainant, wherein he alleged, among other items, that there were deficiencies in the painting of his home. b. Complainant testified that a jobsite inspection was conducted in regard to the complaint filed by the homeowner and that the assigned inspector for the Registrar of Contractors required that paint deficiencies must be corrected. Although Complainant contacted Respondent to complete the required remedial work, Respondent refused to perform same. c. Respondent refused to complete any of the paint remedial work, based on its claim that much of the work involved areas of the home that had been worked on by Complainant after the initial paint project was completed. Moreover, Respondent claimed that there was a significant portion of the paint contract and requested “extras” which were unpaid and that Complainant had abused the entire punch-list process. In light of the unpaid portion of the contract and the fact that Respondent believed that Complainant was abusing the punch-list process, Respondent elected to walk away from the project and forego any claim to the sums remaining unpaid for its work on the project. d. Complainant entered into a settlement agreement with the homeowner, wherein among other things he agreed to give the homeowner a significant monetary credit to cover any dispute referable to the painting of the home. Complainant was unable to present evidence of the exact amount of the painting credit but did aver that it claimed entitlement to monetary damages against Respondent in this regard.

5. By way of mitigation, it should be noted that the working relationship between these parties had totally broken down at the time that Respondent refused to perform any further corrective work. The parties are found to be equally at fault for their inability to work together as professionals to complete the project. 6. 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 the absence of any disciplinary sanctions 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.

7. The evidence of record was inadequate to support any finding of a liquidated sum due and owing to Complainant from Respondent. Thus, this Tribunal is unable to include any condition, referable to a sum that should be paid to Complainant by Respondent, as a means of allowing Respondent to avoid the imposition of a disciplinary sanction. Nevertheless, nothing in this ruling should serve to prevent Complainant from seeking an award of monetary damages from a civil court of competent jurisdiction.

CONCLUSIONS OF LAW

1. Respondent violated A.R.S. § 32-1154A (7).

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 C-34 license of Respondent shall be placed on a period of disciplinary probation for sixty (60) days.

Done this day, May 1, 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