ALJDEC decisions subject to certification as final

08F-4252-ROC · Registrar of Contractors · 2009-06-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 5, 2009 (Record held open until May 25, 2009).

APPEARANCES: >The Complainant appeared in his own behalf. > The Respondent appeared through its President and qualifying party, John Birmingham.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth ________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The record in this matter was held open by the assigned Administrative Law Judge so as to afford an opportunity for Respondent to obtain and submit, and for Complainant to respond to, supplementary documentation relating to civil lawsuit results that may have a bearing upon the within administrative complaints and defenses. However, no post- hearing documentation was filed by or on behalf of either party.

2. Pursuant to a written proposal and contract, Respondent agreed to and did perform specified work on certain residential property owned by Complainant. The major portion of the agreed work was to consist of interior and exterior painting, and also included some countertop, flooring and lighting work.

3. All of the parties’ contractual dealings were concluded with Respondent not by Complainant but instead with Complainant’s brother, Richard Mytko, who was ostensibly acting as his brother’s agent for the purpose of arranging for the performance of and payment for the contemplated construction work. Neither Complainant nor his brother occupied or intended to occupy the residential structure at any time, but instead Complainant admittedly acquired and held this property for investment purposes.

4. The total agreed cost price for the contemplated work by Respondent was in the amount of $15,066.04, of which Complainant was shown to have paid to Respondent the sum of $9,000.00, leaving an unpaid balance under the parties’ contract of $6,066.04.

5. Complainant, through his brother’s other arrangements, had previously retained the services of another specialty contractor for performance of the household drywall work. Such other drywall contractor was not shown to have possessed any valid contracting license.

6. In early April, 2009, Complainant’s brother executed and delivered to Respondent a written and signed statement that the work of the retained drywall contractor was acceptable and ready for Respondent’s subsequent application of interior paint. Respondent is found to have been justified in proceeding with its contractual work since it was Complainant, through his agent, who must be deemed to have accepted the drywall surfaces underlying the applied paint materials as being adequate to support the subsequently applied paint products.

7. The filing by Respondent of a preliminary lien notice to protect its future potential lien rights may well have been considered as a more formal or more serious action by Complainant and/or his brother. However, such filing was shown to be a more or less routine and protective business procedure. In any event, after some extent of disagreement with respect to Respondent’s purported responsibility for rectifying some inappropriate work by the drywall contractor hired by or on behalf of the owner/Complainant, and after the performance of some further remedial work by Respondent not properly forming part of its contractual obligations, Complainant communicated his refusal to transmit payment of the unpaid contract balance and further informed Respondent not to perform additional jobsite repair or touch-up work.

8. Credible testimony at the hearing tended to indicate that Complainant’s brother was proving unable to get along with several of the individual workmen or subcontractors during the work performances and was generating distractions and animosities, thereby serving to hinder the ongoing jobsite construction functions.

9. Respondent was shown to have initiated a civil lawsuit as well as to have recorded a lien against the subject property. It did appear that the lawsuit may have been filed against Complainant’s brother and not against Complainant, himself. It is noted that such action might not have been inappropriate against an agent who may well have incurred some form of individual liability for payment under the contractual agreement that he had signed. The documentary evidence presented at the hearing tended to indicate that a judgment was ultimately obtained by default in favor of Respondent against Complainant’s brother for the full amount of the unpaid contract balance plus other costs and entitlements.

10. To the extent that Complainant herein seeks to collaterally attack the entered default judgment against his brother or to otherwise obtain some form of an accounting or a declaratory judgment establishing his lack of financial responsibility for

the contract balance, the Registrar of Contractors is not the appropriate forum in which to seek and obtain such determinations.

11. On May 12, 2008, Complainant filed the within complaint against Respondent with the Registrar of Contractors.[1] Such complaint enumerated 123 separate items or areas of alleged deficiencies in the jobsite work performed by Respondent. Many, if not most, of the enumerated items were unnecessarily repetitive or overlapping, in that each and every separate location of alleged substandard painting work, however small, was identified and listed as a separate complaint item.

12. Following a jobsite visit, Registrar’s assigned Inspector renumbered the listed complaint items and determined that 99 enumerated items or areas were confirmed deficiencies, and 17 other items did not warrant any action on the part of Respondent. These determinations were incorporated within a written Corrective Work Order issued and dated July 10, 2008.

13. Respondent remained convinced that its work had been adversely impacted because of the improper drywall work previously performed by Complainant’s unlicensed specialty contractor. Nevertheless, after the issuance of the above-described Corrective Work Order by the Inspector, Respondent was shown to have made several attempts, even by sending certified letters in late July, 2008 and early August, 2008 for the purpose of gaining entry onto the jobsite on several requested dates in order to perform the needed remedial touch-up work on all confirmed items of deficiency. However, neither Complainant nor his agent communicated any indication that the requested access would be granted.

14. Despite the numerical quantity of the separate complaint items, it is determined from the credible testimony that only a relatively minor amount of work time and materials would be involved, ranging from four to six hours. Additionally, the probable reasonable cost of such work was shown to be considerably less than the outstanding unpaid contract balance.

15. Respondent demonstrated its inability to gain access to the premises for the purpose of performing the required corrective work. In point of fact, even at the time of the scheduled jobsite inspections by the Registrar’s Inspector, both initially and immediately prior to the hearing date, neither Complainant nor his brother timely appeared until after causing both the Inspector and Respondent’s representatives to wait for a prolonged time period.

16. Construction is not a perfect science, and it is not unusual for items to require attention by way of correction, replacement or adjustment – often even more than once. No finding of a contracting law violation is supportable unless and until, after notice and a reasonable opportunity is given, a licensed contractor fails to rectify construction deficiencies. Under the facts and circumstances of this case, Complainant failed or refused to grant reasonable and timely access to the premises after repeated requests and communicated tenders of work from Respondent, offered despite its (Respondent’s) belief that it was not responsible for or obligated to rectify the reported items of complaint.

CONCLUSIONS OF LAW

1. The totality of the evidence of record failed to adequately establish any violations by Respondent of the provisions of A.R.S.§32- 1154(A), as charged in the issued Citation. ……. ……. …….

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number 08-4252 be dismissed.

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 will be forty (40) days from the date of that certification.

Dated: June 12, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 ----------------------- [1] Although the complaint form was dated April 29, 2008, it was apparently not formally filed with the Registrar until May 12, 2008.

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