ALJDEC decisions subject to certification as final

06F-2453-ROC · Registrar of Contractors · 2006-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8, 2006 APPEARANCES: Complainant Michael Zingale appeared on behalf of Complainants Michael and Lyn Zingale; Dan Simione, Respondent’s member, qualifying party and authorized representative appeared on behalf of Respondent Olympic Contracting Service LLC ADMINISTRATIVE LAW JUDGE: Marianne T. Bayardi _____________________________________________________________________ The issue presented by this matter is whether Respondent Olympic Contracting Service LLC is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Respondent Olympic Contracting Service LLC (“Respondent”) is the holder of a Class B- License (No. 204079) issued by the Registrar of Contractors (“ROC”). 2. Complainants Michael and Lynn Zingale (“Complainants”) are the owners of a residence located at 4441 East Maderus Del Cuenta, Paradise Valley, Arizona (the “Home”). 3. In or about April, 2006, Complainants and Respondent entered into a contract for Respondent to drywall and paint the remodeled portion of the Home.[1] The total contract price was $9,025.00. Complainants have paid a portion of the contract price to Respondent. 4. In or about May, 2006, Respondent performed the drywall work at the Home. Respondent also performed painting work at the Home. 5. The parties agree that Respondent was to roll up and remove the carpet in the two bedrooms prior to drywalling. Additionally, Respondent agreed to cover the carpet pad with plastic and tape it in place to protect the pad. The parties agree that Respondent did not remove the carpets or cover the pads. The carpeting in one bedroom was rolled up, but not removed. In the other bedroom, the carpet was neither rolled nor covered. Additionally, Respondent neglected to remove two newly upholstered chairs and an ottoman that were being stored in one of the bedrooms. 6. Respondent acknowledged its errors in failing to follow through as described above. 7. Complainants and Respondent could not come to an agreement concerning proper remediation of the carpet issue. 8. On June 1, 2006, Complainants filed a Complaint against Respondent with the ROC. The Complaint alleged: We hired [Respondent] to do our drywall work for our remodel. Prior to them starting the work, we walked through the project with Dave Fitch and he agreed to remove the upstairs carpeting and put it in the garage for safe keeping. I told him it was important the (sic) we salvage the carpeting because it was just a year old in February, 2006. He said if it was not covered and removed then under no circumstances could it be salvaged. Dave Fitch also agreed to cover up the carpet pad with plastic and tape so that it could be salvaged as well. For some reason, when the work started, the carpeting in one room was rolled up and left in the room while the other carpeting was left in place and not covered. They resurfaced the walls and ceiling and sanded the drywall on top of our carpeting. I also had two chairs and an ottoman stored up in the bedroom that we had covered with plastic prior to the work being commenced and they uncovered the chairs and performed their work on top of my newly upholstered chairs. When we brought these problems to Dave Roberts’ attention, he agreed that they “dropped the ball” and agreed to have the carpet replaced. Now, for some reason, they won’t replace the carpeting and will only have it steam cleaned. We already pt the bedroom carpeting in the dumpster and feel having new carpeting cleaned with massive amounts of drywall mud and dust is in no way adequate. Due to the fact that my son has extreme allergies, we are asking that the carpet and pad be replaced and professionally installed. We are also asking that my chairs be professionally cleaned, if possible or replaced.

9. On June 15, 2006, Complainants requested the instant administrative hearing. On August 3, 2006, the ROC issued Citation and Complaint No. 06-2453 alleging that Respondent had violated A.R.S. § 32- 1154(A)(3) and (A)(7). 10. On August 16, 2006, Respondent filed a written Answer to the Citation and Complaint. In its Answer, Respondent stated, in pertinent part: [Respondent has] contacted two carpet cleaning companies and one carpet supplier and all have said that the drywall dust can be removed by means of vacuuming and steam cleaning . . . .

The [C]omplainants do not want the carpet cleaned, they want it replaced. If my carpet cleaner could not remove the drywall dust I would be obligated to replace the carpet. Since that is not the case, I will only pay for cleaning the carpet. Additionally, there are two chairs and an ottoman that were not properly protected from the drywall dust; I will pay for cleaning them as well. Lastly, the carpet pad that was not protected in the one room will be replaced.

11. The instant administrative hearing took place on November 8, 2006. 12. At hearing, Complainants contended that, due to Respondent’s admitted failure to protect the carpet and pads, Respondent should replace the carpet and pads. Complainants acknowledged that they did not first allow Respondent to attempt to clean the carpet. Complainants also contended that Respondent should be required to clean the chairs and ottoman, if possible, and otherwise to replace said items. Complainants also maintained that the painting work was not completed. Moreover, Complainants contended that Respondent overcharged them for the work Respondent performed at the Home and placed an excessive lien on the property. 13. Respondent admitted that it failed to properly protect the items in question, but contended that the carpets could be adequately cleaned. Moreover, Respondent asserted that if the results of the cleaning were not satisfactory, it would have replaced the carpeting in the two bedrooms. Respondent intimated that the chairs and ottoman could also be adequately cleaned. Respondent did not dispute that the painting was not entirely complete. Respondent also intimated that it was not completely certain of the applicable dollar amounts and was willing and eager to sit down with Complainants to compare and reconcile the outstanding charges, but that Complainants refused to do so. 14. Mr. Zingale testified that the carpet in the two bedrooms was less than one year old at the time Respondent performed the drywall work at the Home. He also testified that his son has extreme allergies and that Complainants removed the soiled carpeting from the Home and threw it away. Complainants then had the carpeting replaced. Mr. Zingale offered a letter (admitted at hearing as Exhibit 5) from Greg Tayles supporting Complainants’ contention that the carpeting could not be cleaned. Mr. Tayles is an employee of The Floor Club, the retailer from whom Complainants purchased their carpeting. Mr. Zingale acknowledged that he was not aware of Mr. Tayles having any background in carpet cleaning. 15. Mr. Roberts testified that he personally accompanied a representative from Stanley Steamer to the Home to inspect the carpet. Mrs. Zingale arrived shortly thereafter and unlocked the door to the garage to allow Mr. Roberts and the Stanley Steamer representative in. Mr. Roberts testified credibly that Mrs. Zingale did not stay with the pair, but rather went to another area of the Home. The two then went to the remodeled area to look at the carpet and pad.[2] Respondent offered a letter (admitted as Exhibit 6) from Stanley Steamer asserting that the carpet and the furniture were cleanable. Mr. Roberts also testified that, if the cleaning was not adequate, Respondent would have replaced the carpet. Mr. Zingale admitted that Complainants refused to allow Respondent to attempt to clean the carpet. 16. Based on the weight of the credible, probative evidence, the Administrative Law Judge finds that Respondent drywalled the bedrooms without properly protecting the carpeting/pad and furniture. The Administrative Law Judge also finds Complainants unreasonably denied Respondent the opportunity to clean the carpet with replacement thereafter if the cleaning was unsatisfactory. 17. Complainants asserted, and Respondent did not contest, that Respondent did not complete the required painting at the Home. Respondent intimated that Complainants “kicked out” their painter. Mr. Zingale testified that he asked Bryan, the painter, to pack up and leave after he spilled water on a new wood floor and let it sit for hours. 18. The parties disagreed over the proper amount of Respondent’s final bill to Complainant. They additionally disagreed over the amount of Respondent’s lien. They disagreed about what was included within the contract and what was subject to additional fees for change orders. 19. The parties’ monetary dispute should be determined by a civil court of competent jurisdiction rather than in this administrative disciplinary action. CONCLUSIONS OF LAW In this proceeding, Complainants bear the burden to prove, by a preponderance of the evidence, that Respondent is subject to discipline for a violation of A.R.S. § 32-1154(A)(3) and/or (A)(7) as charged by the ROC in its August 3, 2006 Citation and Complaint. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the Registrar.” In this case, the ROC charged Respondent with violating A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. The Administrative Law Judge concludes that Complainants established that Respondent performed work that was not done in a workmanlike manner by failing to protect the carpet/pad and furniture when it drywalled the two bedrooms. Consequently, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32-1154(A)(3). 4. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . resulting in another person being substantially injured.” The Administrative Law Judge concludes that Complainants established that Respondent committed a wrongful or fraudulent act that substantially injured Complainants. Respondent’s failure to perform work in a workmanlike manner (as described in Conclusions of Law ¶ 3) constitute said act. Consequently, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32- 1154(A)(7). 5. Based on the foregoing, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32-1154(A), and that grounds exist to impose discipline against Respondent’s Class B- License. 6. Complainants requested that Respondent be ordered to pay for the replacement of their carpet. As set forth above, Complainants unreasonably denied Respondent the opportunity to first attempt to clean the carpet. Therefore, the Administrative Law Judge concludes that Respondent is not obligated to provide or pay for replacement carpet. RECOMMENDED ORDER On the effective date of the Order entered in this matter, Respondent’s Class B- License (No. 204079) will be suspended unless the ROC receives written proof that Respondent has, either on its own or by an appropriate sub-contractor and at Respondent’s sole cost and expense performed the following: 1. Cleaned the two chairs and ottoman soiled by Respondent’s failure to protect them during drywall. If cleaning is inadequate, Respondent will replace or compensate Complainants for said items. 2. Finish, in a proper and workmanlike manner, the agreed to painting at the Home. If, on or before the effective date of the Order, the ROC has received written proof that Respondent has performed the foregoing, then no suspension will take place. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, November 22, 2006

______________________________________ Marianne T. Bayardi Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

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

By ___________________________

----------------------- [1] Complainants were serving as the general contractor for a major remodel project at the Home. The contracted work at issue in this matter concerned areas within that portion of the home being remodeled. Prior to the agreement concerning drywall and painting, Respondent performed framing work at the Home. The framing work is not at issue in this matter. [2] Mr. Zingale testified that Mrs. Zingale told him that she did not let Mr. Roberts and the Stanley Steamer representative into the Home to look at the carpet.

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