ALJDEC decisions subject to certification as final

08F-2313-ROC · Registrar of Contractors · 2009-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2009 APPEARANCES: Complainant appeared on her own behalf and Respondent failed to appear. 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 contract, Complainant retained Respondent to accomplish the painting on her new home construction project. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. Although there was a general contractor on the new home construction project, Complainant insisted on using Respondent to perform the paint work and, thus, the painting contract was between Complainant and Respondent, with the general contractor having no role in said contract.

3. Based on her dissatisfaction with the work performed by Respondent, Complainant filed the instant Complaint with the Registrar of Contractors. The Complaint was assigned to one of the Registrar of Contractors’ inspectors.

4. The inspector convened a jobsite inspection. After concluding the jobsite inspection, the inspector issued a Corrective Work Order (“CWO”), requiring Respondent to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of the CWO, Respondent failed to comply.

5. Uncontroverted evidence of record established the following deficiencies in the work performed and/or materials provided by Respondent:

a. Varnish applied to interior doors was uneven; b. Exterior window sealant was painted; c. Baseboard in the garage was not painted; d. A wavy paint line was visible in the ceiling area over a specified bathtub; e. Paint was applied too thin in the foyer recess area; f. Drywall repairs were not painted in the Jack and Jill bathroom; g. The common bathroom requires touch-up paint; h. There is bare wood in the area of the casita scuttle hole and touch-up paint is needed in the casita shower area; i. Areas of the front door frame were not painted; j. There were voids in the staining in the area around the garage doors; k. Numerous areas of the exterior paint application revealed inadequate coverage; and l. There were voids in the paint application around the patio window.

6. As a result of Respondent’s failure to comply with the aforementioned CWO, Complainant ultimately hired another contractor to correct the exterior paint deficiencies. The subsequent contractor advised Complainant that the only effective remedial work to correct the exterior paint work would entail a complete repainting of said area. Complainant paid the new painting contractor the sum of $9,500.00 to repaint the exterior of the home. The payment of $9,500.00 was not shown to be unreasonable.

7. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

8. 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 failure to renew since November 1, 2008. Such suspension does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors 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.

9. 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 open Complaint on the Registrar of Contractors’ current record regarding Respondent. There is one matter that is listed under the category “resolved/settled/withdrawn.” Therefore, Respondent’s prior record is properly deemed to be good 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

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

2. No evidence was presented by Complainant regarding the charge that Respondent violated the provisions of A.R.S. § 32-1154A (13); namely A.R.S. § 32-1124 (B).

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 accomplishes appropriate and effective remedial work on the paint deficiencies described in Findings of Fact 2 (a) through 2 (h)[1], above, and pays Complainant the sum of $9,500.00 for the repainting of the exterior of the home, 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 active suspension for a period of 7 days followed immediately by a period of disciplinary probation for 180 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 penalty, that Respondent pay the sum of $250.00 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. 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, May 5, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Evidence of record demonstrated that the items set forth in 2 (i) through 2(l) were corrected during the repainting of the exterior of the home by the subsequent contractor hired by Complainant.

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