ALJDEC decisions subject to certification as final

07F-1828-ROC · Registrar of Contractors · 2008-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 22 January 2008 APPEARANCES: Complainant: Barry and Barbara Anne Glick. Respondent: Luis Santiago, Qualifying Party, J & L Custom Painting; Jeremy Vasquez, Owner, J & L Custom Painting. Others: Scott Deering, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Complainant executed a contract on 30 August 2005 with Superior Coatings LLC to have the exterior of Complainant’s home and the privacy wall around Complainant’s property painted with a special ceramic paint for a cost of $25,000.00. Superior Coatings supplied the paint and subcontracted with Respondent to have Respondent apply the paint. Complainant was told by Superior at the time of the signing of the contract that the old paint surface on the house and privacy wall would be sand-blasted down to the bare stucco underlying the paint. Respondent’s work order issued by Superior only required that the old paint surface be scraped, sanded and/or feathersanded as needed to prepare the surface for painting. There was no requirement for sandblasting to the bare stucco. The painting job was completed 28 September 2005. 2. Complainant was not satisfied with Respondent’s workmanship on some portions of the painting project, as some of the paint on the house cracked, and some of the paint on the privacy wall blistered and peeled. Complainant indicated he had a 10 year warranty from Superior Coating that the paint would not crack or peel, and that Respondent should honor that warranty. Complainant filed a complaint with the ROC on 12 February 2007, and Inspector Scott Deering inspected the job on 23 March 2007, and issued a Corrective Work Order (“CWO”) on 2 April 2007. 3. The CWO indicated that the cracks complained of by Complainant were within ROC workmanship standards of tolerance, and that no action was required by R. However, it was determined at hearing that the blistered and peeling paint on the front gate columns and rear block privacy fence referred to in the CWO still need to be repaired. Photos of the privacy wall clearly show that the blistered areas of paint are caused by accumulations of water under the surface of the paint, which in turn has deteriorated the surface of the underlying block wall stucco material. In fact, several photos show the deteriorated surface in places where the paint has peeled, with pieces of the stucco still sticking to the peeled paint. Other photos show where the paint is bulging from the accumulated water beneath and beginning to slough and slide off the wall. The affected areas are minimal, less than 1% of the surface area of the privacy wall, and not a problem affecting the surface of the privacy wall generally. Inspector Deering stated that it is the ROC’s position that once a painting contractor begins painting an object, the contractor has accepted the underlying paint surface for purposes of the ROC 2-year regulatory warranty of workmanship. 4. Complainant contends the problem with the privacy wall is the failure of the previous two coats of elastomeric paint underlying the ceramic paint applied by the Respondent, and that those two coats of paint should have been removed from the wall before the new ceramic paint was applied. Respondent contends the damage is due to excessive moisture in the wall, thereby causing the underlying wall material to fail. 5. Respondent has offered to repair the peeling portions of the wall paint, but Complainant has refused. Complainant wants Respondent to sandblast and repaint the whole wall. In addition, the original paint is no longer available and any repainting or repair would have to be done with a substitute paint.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. Complainant’s contention that Respondent, as Superior Coatings subcontractor, should honor the warranty given Complainant by Superior Coatings is unsupportable. The warranty is a contract between Complainant and Superior Coatings, to which Respondent is not a party. Any redress Complainant has under the warranty will be against Superior, not Respondent. There is no warranty of workmanship between Complainant and Respondent in this instance, except for the workmanship standards of the ROC and the two year statute of limitations in which a person has to file a complaint with the ROC regarding a contractor’s workmanship. See A.R.S. 32- 1155(A). 3. Complainant’s desire that Respondent redo the entire wall is clearly beyond the scope of anything required under the ROC statutory and regulatory framework for contractors. All the paint on the entire wall has not failed. Only minor portions of the paint surface have failed, and Respondent is ostensibly responsible only for those portions of the paint surface that have failed. However, a close examination of the facts in this case indicate that it is not the paint that has failed, nor has it been shown that there have been any in adequacies regarding the surface preparation or application of the paint by Respondent. In fact, the vast majority of the wall paint is still intact after two years. Rather, it is clear that the places where the paint has blistered and peeled are spots where excessive water has accumulated behind the paint surface and destroyed the underlying material. In fact, there are spots where there is so much water accumulation beneath the paint that the paint is literally sliding off the wall. This excessive water accumulation is not the responsibility of the Respondent. To hold Respondent responsible for this condition would require the ROC to hold a painter of drywall responsible for the paint sliding off the drywall when an overhead waterline breaks and causes the drywall to saturate with water and the semi-gross latex paint to slip off the wall, which the ROC does not do. The situation is similar in this case. The cause of the paint failure is the excessive water accumulation, which is beyond the control of the Respondent and for which he cannot be held responsible. The ROC may have an internal policy regarding acceptance of a paint surface by a contractor for purposes of the two-year workmanship standard, but when that surface is damaged by excessive forces (like water infiltration) beyond the control of the contractor, it is inequitable to require the contractor be responsible for the circumstances those outside forces create. Finally, it is curious to note that the Superior Coatings warranty upon which Complainant relies specifically excludes from coverage under the warranty paint peeling due to failure of the underlying material. 4. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32-1154(A).

RECOMMENDED DECISION In view of the foregoing, it is recommended that the ROC dismiss this case. 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 7, 2008

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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