ALJDEC decisions subject to certification as final

09F-Y0027-ROC · Registrar of Contractors · 2009-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, and September 14, 2009 at 10:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. Respondent Glen Curtis Development Inc. (Corp.) appeared through its attorney, A. James Clark. Respondent New Generation Painting LLC (LLC) appeared through its attorney, Gregory T. Torok. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent Glen Curtis Development Inc. (Corp.) (“Glen Curtis”) is the holder of a Class KB-01 License No. 191241 issued by the Registrar of Contractors. 2. Respondent New Generation Painting LLC (LLC) (“New Generation”) is the holder of a Class KB-34 License No. 210179 issued by the Registrar of Contractors. 3. This is a residential matter where the Complainant purchased a new residence constructed by Respondent Glen Curtis in its capacity as a general contractor. Respondent New Generation was a painting subcontractor on the construction project. . 4. The Complainant was dissatisfied with the Respondents’ workmanship on their new residence and with the Respondent’s failure to correct their work to the Complainant’s satisfaction despite repeated requests that they do so. 5. When the Respondents failed to comply with the Complainant’s repeated requests, the Complainant filed formal Complaints, against both of the Respondents, with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued two written Corrective Work Orders directing the Respondents to perform designated corrective work on the Complainant’s residence. 7. The Corrective Work Order issued to Respondent Glen Curtis Development provides as follows: THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS OR THE HOMEOWNER AND THE CONTRACTOR CAN COME TO AN AGREEMENT ON THE FOLLOWING ITEMS: 1. The interior paint through the whole house that has not adhered to the walls. 2. Repair the gap below the upper window on the front of the house. 2. Repair the gap below the upper window on the front of the house. 3. match the stucco repairs on the north side of the house. 4. Repair the stucco patch by the north rollup door on the patio. 8. The Corrective Work Order issued to Respondent New Generation Painting provides as follows: THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS OR THE HOMEOWNER AND CONTRACTOR CAN COME TO AN AGREEMENT ON THE FOLLOWING ITEM: 1. The interior paint through the whole house that has not adhered to the walls. 9. There was no dispute that the interior paint throughout the residence is chipping, flaking, peeling from the interior walls. 10. Credible testimony and evidence established that the problem is due to the underlying plaster surface breaking down and separating from the drywall. 11. Credible testimony and evidence established that New Generation accepted the plaster surface on the drywall as being an acceptable surface for the paint that New Generation applied to the Complainant’s residence. 12. Respondent New Generation is found to be responsible for the correction of the paint in the interior of the Complainant’s residence. 13. Credible evidence and testimony established that Respondent Glen Curtis Development is responsible for correcting the underlying plaster surface and also equally responsible for the correction of the paint in the interior of the Complainant’s residence. 14. Credible testimony and evidence established that neither Respondent complied with the terms and conditions of the Corrective Work Orders issued to them. 15. The credible evidence of record is found to be insufficient to support a finding of a fraudulent act by either Respondent. 16. Notice is taken of the Respondents’ prior License records with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by Respondent Glen Curtis Development of the provisions of A.R.S. § 32-1154(A)(3), Namely: Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) and A.R.S. § 32-1154(A)(23) (Failure to perform to take appropriate corrective action). 2. The credible evidence or record established violations by Respondent New Generation Painting of the provisions of A.R.S. § 32-1154(A)(3), Namely; Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) and A.R.S. § 32-1154(A)(23) (Failure to take appropriate corrective action).

RECOMMENDed orders In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Class KB-01 License No. 191241 of Respondent Glen Curtis Development Inc., shall be suspended until the Registrar of Contractors receives and accepts written proof that said Respondent has properly complied with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if Respondent Glen Curtis Development Inc., (Corp.) properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 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 view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Class KB-34 License No. 210179 of Respondent New Generation Painting LLC (LLC) shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly complied with the terms and conditions of the written corrective work order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, that the above provided License suspension shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 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 this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, September 29, 2009.

______________________________________ M. Douglas 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 _________________________ -----------------------

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