ALJDEC decisions subject to certification as final

06F-T0819-ROC · Registrar of Contractors · 2006-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 27th, 2006; 1:30 p.m. APPEARANCES: Complainant, Mr. Jerry Riddle, appeared in his own behalf. Respondent, Foote Painting, LLC, was represented by Mr. Walton Foote, Managing Member ADMINISTRATIVE LAW JUDGE: Grant Winston ____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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. Respondent herein, Foote Painting, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-34 License number 196075.

2. Complainants are homeowners in Tucson, Arizona, and their Complaint concerns the workmanship in their home performed by Respondent in late 2005, and early 2006. Respondent performed painting and staining in the Complainants’ home. 3. Complainants filed the instant Complaint with the Arizona Registrar of Contractors on or about March 1st, 2006, alleging workmanship defects and some unfinished work pursuant to the contract. 4. The Complaint was assigned to Registrar of Contractors Inspector Richard C. Allen, who conducted a job site inspection on March 21st, 2006. Complainant Mr. Riddle was present at the inspection, but Respondent was not. Following his inspection, Inspector Allen issued a written Corrective Work Order to Respondent ordering Respondent to make several specifically described corrections to the workmanship within 15 calendar days, which was a reasonable amount of time. 5. Inspector Allen testified at the hearing that he performed a pre- hearing inspection on November 22nd, 2006, and found some items listed in his CWO still had not been corrected. 6. Respondent maintains that the shelves that are not painted were not part of the parties’ verbal contract, and that some of the pencil marks on the painted areas were put there by other contractors, and that all items still alleged as unfinished would be change orders requiring further payment from Complainants. 7. Complainant Mr. Riddle’s testimony, buttressed by that of Inspector Allen, provided substantial, credible evidence that the Respondent has not performed on this job up to workmanship standards, and has failed to comply with the CWO. 8. It is clear from the record evidence that the working relationship between the parties, especially as between Complainant Ms. Riddle and Respondent Mr. Walton Foote, has deteriorated to the point that they cannot work together. Both sides accuse the other of having “cussed me out” over the telephone. In fact, Complainant Mr. Riddle testified that he and his wife would much prefer another appropriately licensed contractor to perform the corrective work. 9. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors.

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 is charged in the instant Citation and Complaint with possible violations of A.R.S 32-1154.A.7, 23, and 3 (namely A.A.C. R4-9-108, Workmanship Standards). 3. A preponderance of the evidence proved that Respondent’s workmanship was below industry and Registrar of Contractors’ standards in violation of A.R.S. 32-1154.A.3, and A.A.C. R4-9-108, and that Respondent failed to take appropriate corrective action in response to the Inspector’s written CWO, without valid justification within a reasonable amount of time. 4. There is no evidence of any violation of A.R.S. 32-1154.A.7 independent of the violations already concluded to have occurred.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class C-34 License number 196075 be suspended until the Registrar of Contractors receives written proof that Respondent has caused another appropriately licensed contractor to perform work at Complainants’ house in satisfaction of the Inspector’s CWO in this case. It is further recommended that if the Respondent properly accomplishes the above-descried corrective action, on or before the effective date of this Order (40 days after the date of service shown on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint T06-0819 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, December 1st, 2006.

______________________________________ Grant Winston Administrative Law Judge

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

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

By ___________________________

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

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488