ALJDEC decisions subject to certification as final

07F-T1237-ROC · Registrar of Contractors · 2008-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 29th, 2008; 9:00 a.m. APPEARANCES: Complainant, Mr. Frank Bertolino, represented himself. Respondent, Mr. Milt Aaron Parsons, doing business as Madera Construction Services, represented himself. 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. FINDNIGS OF FACT 1. Respondent, Mr. Milt Aaron Parsons, doing business as Madera Construction Services, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B-03 License number 232925, and Class C-61 License number 177687. The latter of the two licenses was suspended on July 20th, 2007, for lack of bond, and canceled on July 31st, 2007. 2. Complainant, Mr. Frank Bertolino contracted with Respondent in September, 2006, for Respondent to perform extensive remodeling to Complainant’s Green Valley, Arizona residence. The contract price exceeded $87,000.00. 3. Part of the contract called for Respondent to skim coat and retexture the entire interior wall surfaces of the house. It was originally agreed between the parties that Complainant would be responsible for painting the walls after they had been skim coated and textured. 4. Following the remodeling work, Complainant was dissatisfied with the workmanship and filed the instant Complaint with the Registrar of Contractors in the Tucson office on April 5th, 2007. On August 24th, 2007, Complainant filed a list of items as an addendum to the Complaint. 5. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves. On July 24th, 2007, Inspector Nieves conducted a job- site inspection, and on July 25th, 2007, issued a written Corrective Work Order to Respondent. Inspector Nieves conducted a second job-site inspection in response to the addendum items on September 25th, 2007, and issued a written addendum to his CWO on September 26th, 2007. 6. The original CWO directed Respondent to correct the poor job of skim coating and texturing, and to correct some doors that were painted by Respondent, and did not properly close afterwards. The CWO allowed 15 calendar days for the work which was a reasonable amount of time. The addendum CWO also directed Respondent to make some corrections to the workmanship. 7. By the time of this hearing, as told by the Complainant to the Inspector at the job-site inspection, the only original item still in issue was the skim coating and texturing of the interior walls, but now there is the additional issue of the workmanship of the Respondent made in his effort to correct the situation. 8. After the original effort by Respondent to skim coat and texture the walls, Complainant brought in his chosen painter to paint the walls as had been agreed. The painter refused repeatedly to accept the surface of the walls as prepared by Respondent, and eventually walked off the job. As found, the Inspector concurred with the Complainant that the Respondent had poorly performed the contracted prep work for the walls. 9. After the painter walked off the job, Respondent offered to paint the walls himself. Complainant agreed that if Respondent would properly paint the entire interior wall surface himself, the issue would be resolved to his satisfaction. 10. Respondent returned, but rather than properly paint the interior walls completely, he spot-painted areas that appeared to be unsatisfactory. There is also substantial credible evidence that he used a type of paint that did not match the original, and a color that did not come close to the original. 11. Complainant requested an administrative hearing, which was duly scheduled, noticed and held as indicated hereinabove. 12. Complainant testified at the hearing that the walls now look terrible. Inspector Nieves testified at the hearing that he performed a pre-hearing inspection, and concurred with the Complainant that the painting, in addition to the original poor prep work of the walls, was unsatisfactory, and must be corrected.

13. Respondent testified that he painted the entire interior wall surface; that the smoothness is not covered by any agency or industry standard, and that the color variation is due to when one looks at the walls, time of day, angle, and lighting variations. 14. The greater weight of credible evidence supports the Complainant’s contentions about the walls, and the Respondent must return and properly correct the surface preparation per the contract, and properly repaint them. Since the first efforts by Respondent, Complainant has moved furniture into the home. Respondent is responsible for the proper and safe moving or covering of the furniture while the corrective work is in progress, and restoring the furniture to its proper position afterwards. 15. 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, 17, 23, and 3 (namely, A.A.C. R4-9-108, workmanship Standards). 3. The greater weight of evidence proved that Respondent violated A.R.S. 32-1154.A.3, by the poor workmanship found, in violation of A.A.C. R4-9-108, and violated A.R.S. 32-1154.A.23, by failing to comply with the written CWO, without valid justification. 4. There is no substantial evidence of any wrongful or fraudulent act in violation of A.R.S. 32-1154.A.7, independent of the violations of A.R.S. 32-1154.A.3, and 23. 5. There is insufficient evidence of any violation of A.R.S. 32- 1154.A.17, by knowingly contacting beyond the scope of the two licenses. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B-03 License number 232935 and Class C-61 License number be revoked unless the Registrar receives written proof that Respondent has performed the corrective work described in Finding of Fact #14 above. It is further provided that in the event the Respondent properly accomplishes the above-described corrective work, on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license revocations shall not occur, and Citation and Complaints T07-1237 and T07-1237(W) 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, October 1st, 2008.

______________________________________ Grant Winston Administrative Law Judge

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

Registrar of Contractors Armando Contreras, Acting Director 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com