ALJDEC decisions subject to certification as final

07F-M1204-ROC · Registrar of Contractors · 2007-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 25 July 2007 APPEARANCES: Complainant: Alan Wilton. Respondent: Kevin White, Owner of KO Painting; Robert Abrams, Painter, KO Painting. 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. Respondent contracted with Complainant to paint certain interior portions of Complainant’s home at 847 East Delfio in Gilbert Arizona for $3913.00 (labor and materials). The job was to take ~7-10 days, but eventually took two weeks to complete. It was started in late September 2006 and completed on 13 October 2006. At the

completion of the job, Complainant notice what he felt were certain discrepancies, such as nail holes not filled, a ceiling crack not filled, lines between differing colors not straight, overpainting on certain window sills and moulding, etc. Complainant confronted Respondent regarding the discrepancies, and although Respondent corrected some of them, not all were completed. Eventually, Complainant and Respondent agreed that Respondent would not correct the remaining discrepancies, Complainant would accept the job “as is”, Respondent would reduce the price of the job by $500.00, both parties would release each other from all claims regarding the paint job, and the parties would part ways. 2. Later, when Complainant went to have the remaining work completed by another contractor, he ultimately spent an additional $1506.00 in labor and materials to complete the job. This included repainting several areas, as the contractor Complainant hired to finish the job stated there was not enough paint on the interior surfaces and they needed to be repainted. No ROC Inspection was ever requested by Complainant and no ROC Inspector ever observed Respondent’s work. Respondent‘s paint work (with the exception of the ceiling) was covered by the subsequent painting contractor’s paint job. Respondent work was covered before the Complaint in this case was filed. 3. Respondent testified that his work was adequate and within ROC standards. He stated the overlaps in paint at the window sills and mounding were to cover the previous paint jobs overlaps, so as to have just two colors of paint showing at such borders, rather than three, as Complainant did not want the window sills or moulding painted by Respondent. Respondent confirmed the settlement arrangement described by Complainant. Respondent was never given an opportunity to correct any of his work before it was covered up by another contractor and the Complaint filed.

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. Construction and installation work, such as painting as is the issue in this case, is not an exact or perfect science. It is not uncommon in the industry to have corrections, repairs, and replacements of resultant poor workmanship, mistakes or miscalculations made prior or subsequent to completion of a particular project in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. See ARS §32-1154(A)(23). It is unclear whether Respondent’s workmanship did or did not meet the standards of the ROC, as no ROC inspection took place. Nonetheless, it is clear that in this case, the Respondent was never given an opportunity top make any corrections, if any were in fact required. 3. More importantly, though, is the fact that the parties in this case came to a settlement regarding the work, and that settlement included, in essence, a release of all parties from all claims against each other with regard to the painting job. The terms of the settlement appear to be the product of knowing and voluntary action on the part of each party, and there is no evidence of fraud in the inducement. The policy of the law favors settlements of disputes and adverse parties should be free to adjust their differences by entry into agreements or stipulations of settlement which should be recognized and given effect by all tribunals. As these two parties entered into just such a settlement, this tribunal will not abrogate it. 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). 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). 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 to the ROC that this citation, together with the complaint upon which it is based, be dismissed, that no action be taken against Respondent’s license, and that this case be remanded back to the ROC for further appropriate disposition. 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, August 10, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

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

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

By ___________________________

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