ALJDEC decisions subject to certification as final

09F-P0192-ROC · Registrar of Contractors · 2009-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, and October 27, 2009. APPEARANCES: Complainant Mr. Bradley H. Graham was represented by Mr. Benjamin M. Mitsuda, Attorney-at-Law. Respondent Mr. David Rodney Dodd, doing business as David Dodd Painting, was represented by Mr. Michael R. Ellsworth, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. This is a residential matter where the Complainant Mr. Bradley H. Graham alleges that Respondent Mr. David Rodney Dodd, doing business as David Dodd Painting failed to properly stain and seal exterior doors to the residence Complainant was building for himself and his wife in Show Low, Arizona in 2007-08. 2. The parties entered into their written contract on October 28, 2007. At that time, the doors had already been hung in the house. The house was not near completion at that time. There was no drywall or insulation hung and there was no heating in the house. The doors’ manufacturer recommends staining and sealing the doors as quickly as possible to avoid damage from exposure. 3. The parties dispute what discussions took place when the contract was entered into as to when the Respondent would begin working on staining and sealing the doors. Although not included in the written contract, the greater weight of evidence proved that Respondent’s son, who was working for the Respondent, telephoned his mother and Respondent’s wife, who was also working for the company as scheduler on October 28, 2007, and asked her when the Respondent would be able to begin working on the project. His mother told him it would not be before two to three weeks. This information was conveyed to Complainant on October 28, 2007 and Complainant acceded to that time frame. 4. Respondent did return and properly stained the doors in a timely fashion. After that it was necessary to wait for the stain to dry, and for days when the temperature was warm enough to apply the sealant per manufacturer’s specifications. In Show Low during November 2007, and the weeks and months following, the temperatures were too cold to perform this work. The substantial and credible evidence proved that Complainant had accepted responsibility as the owner-builder for providing heating to the home so that the ambient temperatures would be sufficiently high for the sealant to be properly applied and received by the doors. He did not do this. Thus the sealing of the doors became impossible to properly perform for several months. 5. During the time when the doors were not sealed they became damaged from exposure and other trades working in the house. Complainant formally terminated the contract in March 2008 and filed this Complaint. It appears from the greater weight of evidence that Complainant, acting as owner-builder, made errors and omissions in coordinating the construction of his house, which resulted in the damage to his doors. 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 and 3 (namely, A.A.C. R4-9-108). 3. Complainant has brought this Complaint and accordingly must bear the burden of proof. A.A.C. R2-19-119. 4. There is insufficient evidence to prove that Respondent has violated any of the provisions of A.R.S. § 32-1154.A. in the facts of this case as set forth in the Citation and Complaint. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint P09-0192, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification. Done this day, October 28, 2009.

______________________________________ Grant Winston 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 ___________________________

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