ALJDEC

01F-F0217-ROC · Registrar of Contractors · 2001-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2001 APPEARANCES: Complainant appeared on her own behalf and Respondent failed to appear. 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 for the purpose of re-painting the entire interior of her home. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. Subsequent to filing the instant complaint with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector appeared at the instant hearing and the following salient points were adduced from this testimony:

a. He conducted a jobsite inspection on April 30, 2001. Both parties were present at said inspection. b. He was advised that Respondent was hired to paint the interior of the home. He was further advised that Respondent used a latex based paint to paint over the existing oil based enamel paint. c. He also observed that there were numerous paint chips and areas of peeling paint throughout specified areas of the entire home. Furthermore, the inspector found that with a soft cloth and water he was able to remove the new paint, without using much effort at all. d. Respondent admitted that he did not follow the paint manufacturer’s directions for surface preparation, prior to the paint application. e. Based on the foregoing findings, the inspector issued a “Corrective Work Order”, requiring Respondent to accomplish specified paint remedial work within a state period of time. Notwithstanding the terms of said Agency directive and Respondent’s effort to work on one area of the home, compliance with the directive was not accomplished.

3. Complainant testified that she advised Respondent, prior to starting the re-painting project, that the existing paint was oil based. She further indicated that not only was the paint applied by Respondent failing to properly adhere to the painted surfaces, but that Respondent was very sloppy in his work, allowing a considerable amount of paint to get onto her carpet. She now has obtained new carpet and thus, under no circumstances, does she want Respondent to do any further paint remedial work in her home.

4. By his failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

5. The facts presented in the foregoing Findings of Fact are sufficient to support a finding that Respondent’s paint workmanship was substandard and unacceptable. The inferior quality of Respondent’s work and its failure to comply with the paint manufacturer’s surface preparation directions are found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws. In addition, Respondent’s failure to comply with the Corrective Work Order constitutes a violation of the charged section of the State’s Contracting laws regarding the need to comply with official Agency directives.

6. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been canceled, effective October 30, 2001. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor does it prevent the Registrar from issuing separate disciplinary orders. Moreover, Respondent’s existing canceled license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already canceled license.

7. 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

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 that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent causes another properly licensed contractor to accomplish appropriate and effective remedial work on the paint deficiencies described in the foregoing Findings of Fact, 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 Respondent’s Class C-34 license shall be placed on active suspension for a period of 5 days followed immediately by a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. 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, November 13, 2001

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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