ALJDEC decisions subject to certification as final

06F-2376-ROC · Registrar of Contractors · 2007-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2006

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its general manager, Doreen Skillingstad (“Skillingstad”). 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 accomplish specified paint and minor remodeling work on the exterior and interior of his home. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

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

a. Earl Marshall (“Marshall”) was one of Respondent’s witnesses at the hearing. Marshall is a sales/estimator for Respondent. He sold the job in question to Complainant. The first contract with Complainant involved painting of the exterior of the home. According to Marshall, Complainant was pleased with Respondent’s work on the exterior and ultimately retained Respondent to paint the interior of the home, b. Included in the interior project was removal of the popcorn ceilings in specified areas of the home. Marshall testified that the contract required Respondent to apply new texture to the ceiling, to match the existing texture in the home. According to Marshall, Respondent was only applying what is known as a “knockdown” texture, because that is the type of original texture that was in Complainant’s home. Marshall testified that the applicable contract did not require Respondent to install a “Santa Fe” texture. c. After commencing work on the interior project, Complainant requested replacement texture work in three additional bedrooms. Marshall testified that these rooms originally had an “orange peel” type texture and once again, in order to match the rest of the home, they applied a “knockdown” texture in these areas of the home. d. At some point, while Marshall made visits to the home, in order to check on the progress of the job, he observed that a “Santa Fe” texture finish had been applied in certain areas of the home. Marshall stated that this type of finish was not authorized by the applicable contracts. e. Skillingstad admitted that at some point, a representative of Respondent had agreed to redo the texture in a portion of the home, because Complainant was unhappy with the “knockdown” finish applied but this agreement did not include the additional three (3) bedrooms which had been added to the contract as a change order. f. According to Complainant, he found the original texture work to be uneven and too rough and one of Respondent’s employee’s, Corey, had agreed to redo the texture work with the “Santa Fe” finish. g. Bruce Wenzel (“Wenzel”), one of Respondent’s superintendents, also appeared at the hearing and presented testimony. According to Wenzel, he observed the texture in the home and found it to have been applied in a proper workmanlike manner. He claims that Complainant is very difficult to work for and created a hostile environment in the home. h. Rick Meek (“Meek”) also testified for Respondent. Meek is a construction manager for Respondent. He also found the texture on the walls to have been done in a proper manner. i. Jim McVay (“McVay”) is another construction superintendent for Respondent. He testified that he redid some of the texture work in Complainant’s home and also testified to the fact that Complainant created a hostile and difficult environment in which to perform his work. j. Ultimately, Complainant filed the instant Complaint with the Registrar of Contractors. The Complaint was assigned to one of the Registrar’s inspectors, who conducted a jobsite inspection and issued findings in a Corrective Work Order (“CWO”), dated September 5, 2006. The inspector appeared at the instant hearing and provided testimony regarding his findings. k. The aforementioned CWO required Respondent to accomplish remedial work on nine (9) areas of the home, within a stated period of time. In addition, the CWO also included nine (9) other areas wherein the inspector ruled that no further work was required by Respondent. l. Included in the “no action required” portion of the CWO, was the inspector’s finding that the texture applied to the interior walls was performed in a workmanlike and professional manner. In addition, he also noted that he could find no contractual obligation which would require Respondent to install a “Santa Fe” texture to the bedrooms which had been added onto the contract after commencement of the interior portion of the project. m. The inspector testified regarding his findings at a pre-hearing inspection. He found that Respondent had responded to his CWO, but there still remained some very minor issues, which required further remedial work by Respondent. The remaining minor issues included the following:

1. He found paint spots or splatters on the concrete patio and on the driveway. 2. In the hallway pantry closet he found that the hinges were bent, causing the doors to bind. 3. In the office bedroom (southeast bedroom) he found some minor paint peeling about a dime in size where the face frame meets the drywall and also found a small depression in the drywall just above the door casing. In addition, one outlet still had protective tape on it. 4. There are two small excessively “shiny” spots on the wall of the master bedroom. 5. There are two white spots on the rear wall of the house. 6. In the carport area he found some minor paint peeling where the block meets the stem wall.

n. The inspector testified that the paint spots on the driveway are new issues, but he felt they were related to other paint issues from the original inspection. He also indicated that Skillingstad agreed at the pre- hearing inspection that Respondent would correct the hinge problem on the hallway linen closet doors. o. Evidence of record showed that Respondent had Complainant “sign- off” that he was satisfied with Respondent’s remedial efforts on all of the items of the CWO that required work (action) by Respondent. Although Complainant “signed-off” on all of the items as being corrected, at the hearing he testified that he never looked at the items, because he was too busy at the time. Contrary to Complainant’s testimony in this regard, both Skillingstad and Wenzel testified that they had Complainant look at all of the items on the CWO before he “signed-off” that he was satisfied.

3. Based on the foregoing and in consideration of the all of the evidence and testimony presented at the hearing, it is determined and held that the items set forth in Finding of Fact 2 (m), above, constitute substandard and unacceptable workmanship, albeit minor punch list type items that could have been corrected had the working relationship between the parties not broken down.

4. Under all of the salient facts and circumstances presented herein it is determined that Respondent accomplished substantial compliance with the terms and conditions of the CWO, such that there is no basis to find a violation of the applicable charged section of the State’s Contracting laws regarding the need to comply with an official Agency directive.

5. Evidence of record showed that there remains a money dispute between the parties. Respondent contends that there is a balance due and owing on the contracts. Complainant contends that he has been damaged by Respondent and Respondent owes him specified refunds of sums previously paid. The Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to resolve such a money dispute and thus, if the parties are unable to resolve their money issues, then the matter will have to be brought before a civil court of competent jurisdiction.

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 prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. However, the record does show that four (4) matters were resolved or closed subsequent to issuance of a Corrective Work Order or Citation. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is viewed as neither a matter in mitigation or aggravation for any disciplinary penalties to be imposed as a direct result of this case.

7. The Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, as a means to avoid otherwise appropriate disciplinary sanctions. No reason is found under the facts of the instant matter to depart from this long-standing policy of the Registrar of Contractors. However, Complainant is on notice that he must cooperate in a proper manner to allow access and not to harass any workers that Respondent may send to his home. Any future finding that demonstrates Complainant failed to properly cooperate in allowing Respondent unfettered access to make the repairs required by the Order entered in this matter shall be deemed to be tantamount to Respondent’s compliance with said Order.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

2. The evidence of record was inadequate to support any conclusion that Respondent violated the provisions of A.R.S. §32-1154A (23), (2), or (1).

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 KB-02 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 2(m)(1) through 2(m)(6), above. It is further recommended that if Respondent accomplishes the above- described corrective work or is denied reasonable access to perform said work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and, in that event this Citation (no. 06-2376), together with the Complaint upon which it is based, shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, February 20, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

-----------------------

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