ALJDEC

02F-T0323-ROC · Registrar of Contractors · 2002-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, April 11th, 2002; 9:00 a.m. APPEARANCES: The complainants, Sonia Vohnout and Juan Garcia, appeared and represented themselves. The respondent, Ronald Cole, appeared and represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona. At the time of the incidents leading to the filing of this complaint, and the time of the complaint, respondent was licensed by the Registrar of Contractors individually as Cole’s Custom Painting, and as such held Class C-34 License number 095789. Subsequently, respondent incorporated his business. Incidental thereto, respondent canceled license number 095789, and the ROC issued him Class C-34 License number 163581, for his new corporate business, Northwest Custom Painting, Inc. 2. Complainants are homeowners residing in Tucson, Arizona. 3. Respondent was the painting subcontractor who painted the stucco exterior of the complainants’ new home. The painting was performed in September of 2000. Soon after the house was painted efflorescence began appearing in the paint. Efflorescence is the sun’s leaching out of salts from the stucco when there is moisture therein. It results in damage to the paint on the stucco. 4. Complainants filed this complaint on October 1st, 2001. They also filed another administrative complaint with the Registrar of Contractors against the general contractor for the construction of their home, RMD Construction (T02-0025). 5. This case was assigned to Registrar of Contractors Inspector James R. Morris. Inspector Morris conducted a job-site inspection on October 26th, 2001. As a result of his inspection, Inspector Morris issued a Corrective Work Order to the respondent dated October 30th, 2001. In it the inspector ordered the respondent to correct the exterior paint on the house and patio walls that has deteriorated, and properly prepare and finish all affected areas. The inspector’s CWO allowed the respondent 15 calendar days to make the corrections, which was a reasonable amount of time. 6. Inspector Morris testified at the administrative hearing. He informed the record that he had conducted a pre-hearing inspection the morning of the hearing, and found the condition of the paint job had not been corrected as ordered. He rendered his opinion that the entire house needs to be repainted, and that mere patching or repainting only certain areas will not do. 7. Respondent Ronald Cole testified at the hearing. He does not dispute that efflorescence has occurred, but would have himself absolved of all responsibility in the matter, and blame placed on the general contractor. According to respondent’s evidence, the general contractor controlled the timing and scheduling of the painting. The general directed him to paint before respondent believed the stucco was sufficiently cured. Respondent prepared a document entitled a Waiver of Responsibility, which purports to hold himself harmless in the event of efflorescence. He signed the document and gave a copy to the general before painting the complainants’ house. Because of these facts respondent believes he is not responsible to correct the failing paint job. 8. The evidence is overwhelming and undisputed that the respondent painted the complainants’ house and the paint job failed due to efflorescence. It is a long-standing policy of the Registrar of Contractors, as testified to by the inspector, that when the painting subcontractor paints the house, he has accepted the surface (regardless of protests made) and any failure of the paint thereafter because of the conditions in the surface below the paint remains the responsibility of not only the general contractor, but the painting subcontractor as well. 9. Notice is taken of the respondent’s prior license record with the Arizona Registrar of Contractors. This includes the fact that subsequent to respondent’s business being incorporated and licensed by the registrar with Class C-34 License number 163581, respondent was named as respondent in another administrative complaint, the outcome of which is pending before the registrar at this time. That is Karel Vohnout v. Northwest Custom Painting, Inc., case number T02-0172. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156, and A.R.S. §41-1092. 2. Respondent herein is charged in the instant citation and complaint with possible violations of A.R.S §32-1154.A.7., 23., and. 3. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in this case is A.A.C. R4- 9-108, Workmanship Standards. Undoubtedly it is to be concluded that the extensive efflorescence on the complainants’ house is a result of poor workmanship in violation of the registrar’s standards. Respondent’s paint job violated A.A.C. R4-9-108, and thereby violated A.R.S. §32- 1154.A.3. 4. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contracting laws of the State of Arizona, without valid justification, within a reasonable amount of time, after receiving a written directive from the registrar to do so. The written directive in this case is the CWO. Respondent failed to obey the CWO. Respondent offered no valid justification for the failure. Respondent violated A.R.S. 32-1154.A.23. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of any violation of this statute independent of the violations already concluded. 6. Respondent’s argument that he is not responsible for the efflorescence since he cautioned the general contractor, and gave a written statement signed by himself stating that he would not be responsible notwithstanding, respondent accepted the surface of the stucco and painted it. Once having painted the stucco, even under protest, he, as well as the general contractor, became responsible for any subsequent defects in it, including the efflorescence in this case. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that on the effective date of this order (40 days after the date of service appearing on the registrar’s certification on the order), respondent’s Class C-34 License number 095789 shall be temporarily suspended until such time as the registrar receives written proof that the respondent has made the corrections identified in the Corrective Work Order. It is further recommended that if the respondent properly accomplishes the above-described corrective action, on or before the effective date of this order, then the above-provided license suspension shall not take place, and citation and complaint number T02-0323, together with the complaint on which it is based, shall be closed. Done this day, April 25th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of April, 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488