ALJDEC decisions subject to certification as final

09F-A0248-ROC · Registrar of Contractors · 2009-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CONSOLIDATED HEARING: December 1, 2009 APPEARANCES: David Nurmi appeared personally. Horizon Painting Company, L.L.C. was represented by its member and qualifying party, Kevin Quinn. C Bar C Construction, Inc. was represented by its attorney, Rich Carter, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the entire record in these matters, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Horizon Painting Company, L.L.C. (“Horizon”) is the holder of License No. 219313, a Class K-34 contracting license issued by the Registrar of Contractors (“Registrar”). 2. C Bar C Construction, Inc. (“CBCC”) is the holder of License No. 087714, a Class C-36 contracting license issued by the Registrar. 3. David Nurmi (“Complainant”) is the owner of a residence located at 8220 N. Sable Way, Prescott Valley, Arizona. 4. Horizon was the painting subcontractor who painted the exterior of Complainant’s residence when it was built. 5. CBCC was the stucco subcontractor for the construction of Complainant’s residence. 6. On December 22, 2008, Complainant filed a written Complaint with the Registrar alleging deficient paint workmanship by Horizon. The Registrar designated the Complaint as Case No. A09-0248. 7. The Registrar issued a Citation and Complaint in Case No. A09-0248 alleging violations by Horizon of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. 8. On December 22, 2008, Complainant filed a written Complaint with the Registrar alleging deficient stucco by CBCC at the southeast part of Complainant’s residence. The Registrar designated the Complaint as Case No. A09-0249. 9. The Registrar issued a Citation and Complaint in Case No. A09-0249 alleging violations by CBCC of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. 10. The Registrar forwarded Case Nos. A09-0248 and A09-0249 to the Office of Administrative Hearings, an independent agency, for formal hearing. Those cases were consolidated for hearing. 11. Horizon and CBCC each received a Corrective Work Order issued by the Registrar’s assigned inspector, John Prince, requiring them to perform remedial work to their respective scopes of work. 12. Horizon offered to perform the required paint repairs, but Complainant declined to permit Horizon to do so at that time due to the flaking stucco issue. 13. CBCC did not perform remedial repairs because it contends that Horizon’s deficient painting caused the damage to its stucco application. 14. Horizon’s painting application did not provide sufficient coverage of the stucco surface. Horizon contends that the general contractor did not want to pay to have the paint back rolled, which would have been the proper method of applying sufficient paint cover over the exterior stucco. 15. As a result of Horizon’s failure to provide adequate paint coverage for the stucco, it is determined that the subsequent flaking of the stucco resulted from the inadequate paint coverage, not a failure by CBCC to adequately apply the stucco. Therefore, Horizon is found to be responsible for the damage to the stucco and the remediation of that damage. 16. Horizon had good cause for not complying with the Corrective Work Order it received from Inspector Prince because Complainant did not permit it to perform any remedial work until the cause of the deficient paint and damaged stucco could be determined. 17. CBCC had good cause for not complying with the Corrective Work Order it received because its stucco application was damaged due to Horizon’s failure to adequately provide paint coverage for the stucco. 18. Respondent’s failure to provide adequate exterior paint resulting in damage to the stucco is a wrongful act resulting in substantial injury to Complainant. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Horizon and CBCC, and the subject matter, in these consolidated cases. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in these matters. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Horizon violated the provisions of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 4. Horizon did not violate the provisions of A.R.S. § 32-1154(A) (23), because Complainant did not permit Horizon to comply with the Registrar’s written directive. 5. CBCC did not violate the provisions of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDERS Case No. A09-0248 Horizon’s License No. 219313 shall be suspended on the effective date of the Order entered in Case No. A09-0248 until the Registrar receives written notice, and the Registrar approves such notice, that Horizon has accomplished the following: 1. Horizon shall hire a properly licensed stucco contractor to perform repairs to Complainant’s stucco resulting from Horizon’s inadequate exterior paint application, as described in the above Findings of Fact, at its sole cost and expense. 2. After the stucco repairs have been performed, Horizon shall repaint the exterior of Complainant’s house in a workmanlike manner at its sole cost and expense. If Horizon complies with the two above-described conditions on or before the effective date of the Order entered in Case No. A09-0248, then the above-provided license suspension shall not take place. In addition to the above-described disciplinary penalty, if any, Horizon’s contracting license shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in Case No. A09-0248 or the date on which the Registrar approves notice of Horizon’s proper compliance with the two conditions set forth above, whichever is later. Case No. A09-0249 The Citation and Complaint in Case No. A09-0249 shall be dismissed on the effective date of the Order entered in this matter.

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 40 days from the date of that certification.

Done this day, December 21, 2009.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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