ALJDEC decisions subject to certification as final

07F-2302-ROC · Registrar of Contractors · 2008-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 2008 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Scott Batchelor. 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 written contract, Complainant retained Respondent to paint the exterior of his home. Complainant alleges certain deficiencies in the work performed and/or materials provided and same are discussed in the findings below.

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

a. Among other things, the applicable contract provided that Respondent would “prep, prime and paint..” In addition, the contract also provided that Respondent would repair the cracks in the stucco. b. Undisputed evidence of record showed that Complainant’s home had extensive cracks prior to the time that Respondent painted the home. c. Subsequent to the completion of Respondent’s painting work, the cracks have reappeared, there are blisters in the paint, areas of the paint have peeled, and the finish on the vega posts has deteriorated within a short period of time. d. The Complaint was assigned to one of the Registrar of Contractors’ inspectors, who appeared at the hearing and provided testimony. The inspector conducted a jobsite inspection, which Respondent failed to attend. e. Subsequent to concluding the aforementioned jobsite inspection, the inspector issued a Corrective Work Order (“CWO”), which required Respondent to accomplish remedial work within a stated period of time. Notwithstanding the terms of said CWO, Respondent failed to comply with same. f. Respondent testified that he had advised Complainant to use an elastomeric paint on his home, due to all the cracking, but Complainant refused to pay the additional cost. There is no written disclaimer in the contract, which indicates that Respondent would not be responsible if the cracks reappeared, due to Complainant’s decision not to pay for elastomeric paint. g. Respondent contends that there is something wrong with the underlying stucco, which is causing the cracks to reappear and his paint work to fail. He does not believe he should be held responsible for such problems under these circumstances. h. The assigned inspector testified to the Registrar of Contractors’ policy regarding “accepting the surface.”

3. The weight of the evidence of record was adequate to support a finding that Respondent’s paint work has failed, due to reappearance of the stucco cracks, which he had agreed to repair, blistering paint, bubbles in the paint, and faded stain work on the vegas. This substandard and unacceptable work is also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. Respondent accepted the project to accomplish a paint job, including repair of the stucco cracks as part of the prep work for the paint job. The cracking described herein is found to be unacceptable, creating not only a breach of the implied warranty of fitness for aesthetic purposes but also an unworkmanlike result. It is determined and held that Respondent, by virtue of agreeing to repair the cracks and paint the home, effectively accepted the surfaces as being adequate to support a workmanlike result and, as such, is estopped to assert that it has no responsibility for the cracking due to the stucco under his paint work.

5. Respondent’s failure to comply with the CWO constitutes a violation of the charged section of the State’s Contracting laws regarding the need to comply with an official Agency directive.

6. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been suspended by operation of law for lack of a proper bond since February 10, 2008. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing separate disciplinary orders. Moreover, Respondent’s existing suspended license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already suspended license.

7. 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 that the instant Complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent causes a properly licensed contractor to accomplish appropriate and effective remedial work on the paint and crack deficiencies described herein, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-34 license shall be placed on a period of disciplinary probation for sixty (60) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, that Respondent pay the sum of $225.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, February 20, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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

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