ALJDEC decisions subject to certification as final

2010A-23927073-ROC · Registrar of Contractors · 2010-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 7, 2010 APPEARANCES: Mark Melkowski appeared personally. O F A M Residential and Commercial Painting, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. O F A M Residential and Commercial Painting, L.L.C. (“Respondent”) is the holder of License No. 194065, a Class C-34 painting and wall covering contracting license issued by the Registrar of Contractors (“Registrar”). 2. On January 12, 2010, Mark Melkowski (“Complainant”) filed a written Complaint with the Registrar alleging numerous workmanship deficiencies by Respondent on a project at Complainant’s residence. 3. The Registrar initially designated Complainant’s Complaint as Case No. 10-2392, but later re-designated it as Case No. 2010-23927073. 4. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4- 9-108, (13), specifically A.R.S. § 32-1124(B), (17), and (23). 5. The Registrar forwarded Case No. 2010-23927073 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 2010-23927073, which advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. In response to the filed Complaint, the Registrar’s assigned inspector, Beau Cruz, performed a jobsite inspection to view the Complaint items. 9. As a result of his jobsite inspection, Inspector Cruz issued a Corrective Work Order dated February 5, 2010, which addressed the 13 Complaint items and an additional three items added at the jobsite inspection. The written directive required Respondent to timely perform remedial work to the following areas of deficient workmanship: The contractor is to correct the following by the appropriate means Complaint 1) Painting not completed inside home: Improperly painted area, on the east upper wall leading into the master bedroom that appears to be a patch in area to the right of the rear skylight.

Complaint 2) Repair stucco – not completed: Stucco surface not finished to grade on the upper exterior area of the east retaining wall for the lower basement patio area.

Complaint 3) Flash on patio – not completed: Damaged bent/split drip edge flashing on both corners of the S/W corner of the rear west patio roof.

Complaint 4) Sump pump paid for – not installed: Empty square concrete pit for a sump pump in the right rear corner of the basement patio area.

Complaint 5) Basement wall paid for – not completed: Paint on the exterior wood trim of the three basement windows has not been properly cut-in.

Complaint 6) Jacuzzi stone broken – not repaired: Two badly chipped corner [sic] on the east steps leading up to the Jacuzzi outer perimeter decking.

Complaint 7) Pavers not cleaned – in Jacuzzi area: Numerous stucco splatter stains on the surface of the decking pavers of the rear east Jacuzzi patio area.

Complaint 8) Rain gutter broken – not repaired or replaced: Damaged section of downspout gutter extension on the N/W corner of the house.

Compliant [sic] 9) Reimbursement for stone – we paid for was never ordered [sic]: Complainant alleges that he paid contractor for the veneer stone on the front patio fence and patio roof pillars as well as around the front east and west windows of the house and contractor never ordered the stone so complainant had to order stone again and hire other contractor to install stone.

Complaint 10) Touch up painting and Stucco [sic] touch up not completed: Paint on patched area of stucco on the upper east wall of the house, [sic] does not match surrounding areas.

Complaint 12) Back patio roof never repaired or completed: Missing trim board noted between the patio ceiling and fascia board.

Complaint 13) Satellite Dish – taken from home – without approval: Missing satellite dish that was on the east stucco surface of the chimney.

Addenda to compliant [sic]

Complaint 14a) Missing pavers around sump pump pit as per contract: Missing pavers around sump pump pit in the right rear corner of the basement patio area.

Complaint 15a) Outlets not installed in the basement after painting: Three missing outlets on the east wall of the basement.

Complaint 16a) Damaged bi-fold closet door in the basement: Damaged and uninstalled right bi-fold door on the north wall of the basemen [sic] closet.

No action required of the following due to being duplicates

Complaint 11) Stucco – two different colors not repaired: Complainant stated that this issue was addressed in complaint #11 [sic].

10. At the hearing, Complainant testified that Respondent had been at Complainant’s residence on September 3, 2010, to perform some remedial work required by the February 5, 2010 Corrective Work Order.[1] 11. Respondent failed to comply with the required remedial work to Complaint item number 1) of the Corrective Work Order. The painting has not been completed. 12. Respondent failed to comply with the required remedial work to Complaint item number 2) of the Corrective Work Order. Complainant testified that Respondent attempted to repair this item on September 3, 2010, but there are color variations. 13. Respondent completed remedial work to Complaint item number 3). 14. As to Complaint item number 4), Respondent testified that the sump pump has been installed, but it is not operational. 15. Respondent failed to comply with the required remedial work to Complaint item number 5) of the Corrective Work Order. 16. As to Complaint item number 6), Complainant testified that the work has been completed. 17. As to Complaint item number 8), Complainant testified that the work has been completed. 18. Respondent failed to comply with the required remedial work to Complaint item numbers 9) and 13) of the Corrective Work Order. 19. Complainant did not address the remaining Complaint items at the hearing. 20. Respondent is determined to have failed to timely comply with the Registrar’s Corrective Work Order. 21. Respondent is further determined to have performed work on Complainant’s project beyond the scope of its Class C-34 painting and wall covering contracting license, including, but not limited to, work involving the sump pump, Jacuzzi stone, pavers, and stone work. 22. Complainant failed to present any evidence pertaining to the parties’ contract. 23. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 194065 was suspended by operation of law for nonrenewal of the license on April 1, 2010. As a result of that license suspension, Respondent is not permitted to perform any contracting, including remedial work on Complainant’s project, until the license is reinstated in good standing. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. The suspension of Respondent’s License No. 194065 by operation of law does not deprive the Registrar of the authority to impose disciplinary action against the license for proven statutory and/or regulatory violations in this matter. A.R.S. § 32-1154(C). 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, (17), and (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. Complainant did not address this issue at the hearing. RECOMMENDED ORDER Respondent’s License No. 194065 shall be revoked on the effective date of the Order entered in Case No. 2010-23927073. In addition to the foregoing license revocation, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). 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 Case No. 2010-23927073 shall result in the automatic revocation of Respondent’s contracting 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. § 32-1101(A) (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 will be 40 days from the date of that certification.

Done this day, September 27, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Corrective Work Order required Respondent to perform the required remedial work no later than February 20, 2010.

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