ALJDEC

02F-A0018-ROC · Registrar of Contractors · 2002-01-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2002 APPEARANCES: Dawn Raye Purvis appeared at the hearing on her own behalf. John Duane Wilson did not appear at the hearing. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. Dawn Raye Purvis (Complainant) entered into a contract (the Contract) with John Duane Wilson (Respondent) on March 19, 2001, for Respondent to paint Complainant’s house (the Home). 2. Pursuant to the terms of the Contract, Complainant made a down payment to Respondent in the sum of $500.00 on March 19, 2001, and paid the balance of the contract price on April 5, 2001, in the amount of $1,442,00. Additionally, as part of the compensation to be provided to Respondent, it was agreed that Complainant would transfer title to her 1979 Midget MG to Respondent. 3. Complainant testified that she transferred title to the above- mentioned vehicle to Respondent. 4. Complainant testified that Respondent represented that, except for painting the . . . accent colors, he would complete the work contemplated in the Contract by April 8, 2001. Complainant was expected to return from an out of town trip by that date. 5. On April 8, 2001, when Complainant returned from her out-of-town trip, the Home was not completely painted. 6. Prior to the above-mentioned trip, Complainant selected a tan color as the color Respondent was to paint the Home. Upon her return from the above-mentioned trip, Complainant observed that the Home had been painted a first coat of paint on approximately ¾ of the Home. Complainant also observed that the color of the paint on the Home was not the color she had selected. According to Complainant, Respondent had also left a mess on the concrete slab. 7. On April 9, 2001, Complainant telephoned Respondent and requested that he finish the job and clean up the mess he had left at the Home. 8. Respondent responded that he would visit the Home the next day to finish the job and perform cleanup. Respondent did not come to the Home and did not perform any work at the Home despite representations made to Complainant that he would do so before April 26, 2001. 9. On April 25, 2001, Respondent contacted Complainant and informed her that he was ready to come back to the Home to paint the Home to her satisfaction. Respondent represented to Complainant that he would paint the shutters and requested her to select the paint color. Complainant selected tan as the color the shutters were to be painted. 10. Complainant testified that the color of the paint on the Home, applied by Respondent, is a brownish green and not the tan color she selected. Complainant informed Respondent that he had painted the Home the wrong color. 11. Complainant testified that she selected the color of the Home to be painted by going to Home Depot to have a can of paint made. Complainant had her garage door painted with that color. Complainant gave Respondent the can of paint she obtained from Home Depot so he could match it in obtaining the paint to be applied to the Home. . . . 12. Complainant testified that the Contract provided that Respondent was to supply the paint to be applied to the Home. 13. On April 26, 2001, Respondent came to the Home and attempted to clean up the mess complained of by Complainant. When Respondent completed the cleanup, paint and stains still remained on the concrete slab. 14. After Respondent attempted cleanup at the Home on April 26, 2001, he informed Complainant that he could not work under the existing conditions, that the mess on the concrete slab was not caused by him, and he attributed the mess to vandalism. 15. Complainant testified that during the time frame in question, the Home was not vandalized. 16. Complainant filed a complaint with the Registrar of Contractors complaining of work deficiencies and that Respondent failed to complete the job. Subsequent to the filing of that complaint, a jobsite inspection of the Home was performed by Registrar of Contractors’ Inspector Cliff Frandsen. After the jobsite inspection, a Corrective Work Order was issued requiring Respondent to perform certain remedial work within fifteen calendar days of issuance of that order. 17. Complainant testified that Respondent requested and received from the Registrar of Contractors a fifteen day extension to comply with the Corrective Work Order. 18. The weight of the evidence of record established that, except for item 3, all of the items listed in the Corrective Work Order, which is attached hereto and incorporated herein by this reference, are existing deficiencies that are attributable to Respondent and do not meet minimum workmanship standards 19. During the jobsite inspection, Complainant and Respondent agreed that Complainant would select and provide the paint for Respondent to apply to the Home. 20. Complainant testified that in reliance upon the above-mentioned agreement, she purchased paint for the Home, including the accent color, for a total cost of $258.83. 21. Complainant testified that Respondent contacted her on August 22, 2001, and informed her he would paint the Home. 22. On August 23, 2001, Respondent and one employee came to the Home and performed some preparation work such as taping, sanding, and started applying primer to the Home. 23. On August 24, 2001, Respondent came back to the Home with two employees and requested the paint. Complainant provided to Respondent the paint she had purchased, which was white in color, but Respondent did not paint the Home. 24. Complainant is in possession of all of the paint she purchased at Home Depot. 25. Complainant testified that with respect to item 4 on the Corrective Work Order, Respondent placed plastic shopping bags on three exterior light fixtures, which melted and caused the fixtures to be damaged. 26. Complainant testified that the three exterior fixtures, damaged by Respondent, were wrought iron fixtures that could not be matched. Complainant testified that the Home has five exterior light fixtures that match and because three were damaged by Respondent, she had to replace all five light fixtures so the Home could have matching exterior light fixtures. 27. Complainant purchased five light fixtures for a cost of $249.00 and incurred an additional $125.00 to have a licensed electrician remove the existing light fixtures and replace them with the ones she purchased at Home Depot. 28. Complainant testified that the light fixtures she purchased from Home Depot were less expensive than the fixtures damaged by Respondent, which could not be obtained because they were no longer manufactured. 29. It is determined that the costs incurred by Complainant to replace the above-mentioned light fixtures is a reasonable sum that Complainant is entitled to a restitution payment from Respondent. 30. Complainant and the weight of the credible evidence established that Respondent did not comply with the Corrective Work Order. 31. The evidence of record also established that Respondent did not perform according the verbal jobsite agreement reached by the parties regarding the painting of the Home. Consequently, during the hearing, it appears Complainant has elected to enforce the original agreement because of Respondent’s breach of the supplemental agreement. Complainant now seeks reimbursement for the paint she was induced to purchase based upon Respondent’s representation that he would complete the job, which he failed to do. 32. Under the circumstances, it is determined that the sum of $258.83.is a reasonable sum that Complainant incurred in the purchase of paint. Because the original agreement provided that Respondent was to provide the paint, Complainant is entitled to a restitution payment from Respondent in the amount of $258.83 as reimbursement for the cost of the paint that she purchased. Consequently, the total restitution payment Respondent is responsible to make to Complainant is $632.83 ($249.00 plus $125.00 plus $258.83). 33. During the hearing, Complainant took issue with the determination made by Inspector Frandsen that Respondent is not responsible for painting the shutter of the Home. 34. Complainant testified that the Contract provided for Respondent to paint the shutters but that subsequently, Respondent informed Complainant that the paint would bleed and it could not be done. 35. Complainant took the shutters to Home Depot and Sherwin Williams where she learned that if primer is applied, the shutters can be painted. 36. Under the facts and circumstances presented during the hearing, the evidence established that Respondent is responsible to paint the shutters of the Home. 37. The testimony of Complainant, as set forth above, is determined to be credible. 38. Respondent did not appear at the hearing and did not present credible evidence to refute or rebut the evidence presented by Complainant. 39. Administrative notice is taken of Respondent’s licensing record with the Registrar of Contractors which reveals that no disciplinary action has been taken against the license within the past two years. That record is considered as a matter in mitigation of any penalty to be assessed against Respondent in this matter. . . . 40. It is determined that the Respondent has had ample prior opportunity to directly rectify the deficiencies noted above. Therefore, for any future remedial action that is Respondent’s responsibility, Respondent shall cause another properly licensed contractor to perform such work. CONCLUSIONS OF LAW Based on the above, the weight of the evidence of record established that Respondent has violated the provisions of A.R.S. §32-1154(A) (7) (23), and (3) namely A.A.C. R4-9-108. The evidence of record does not establish that Respondent violated the provisions of A.R.S. §32-1154(A) (15). RECOMMENDED ORDER It is recommended that on the effective date of the Order entered in this matter, Respondent’s Class C-61 license shall be revoked, unless on or before the effective date of the Order entered in this matter Respondent has paid or tendered to Complainant the sum of $632.00, that Respondent has caused another properly licensed contractor to perform appropriate and effective remedial work as set forth in the above-mentioned Corrective Work Order, and Respondent has caused another properly licensed contractor to paint the entire Home and shutters with the paint currently in possession of Complainant. It is further recommended that in the event that Respondent that complied with the above by on or before the effective date of the Order entered in this matter, no license revocation shall take place. It is further recommended that in the event that the above-mentioned revocation not be imposed, any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four months, including future renewal periods, in the amount of $2,000.00, such bond, or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. §32-1152. Cash or alternative deposits, if utilized, shall be returned only after the expiration of an addition two year period following the above-provided twenty-four month period and only if no claims are then pending. Such bond shall be posted on or before the effective date of the Order entered in this matter. Done this day, February 1, 2002.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of February, 2002, to:

Michael P. Goldwater, Director Registrar of Contractors 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