ALJDEC decisions subject to certification as final

2010A-308474562-ROC · Registrar of Contractors · 2011-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2011

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife Marilyn Edwards; Respondent was represented by Operating Manager and Qualifying Party Todd Fries.

WITNESSES: Greg Koeneman, ROC Inspector (telephonic) Clifford Edwards Marilyn Edwards Todd Fries

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order with regard to work done by Respondent at Complainant’s home. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented Exhibits 1 through 6 submitted by Complainant[1] and Exhibits B, E, F, G, H, I, and J submitted by Respondent.[2] Further, the parties submitted testimony from the witnesses listed above at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that minor corrective work is needed. FINDINGS OF FACT 1. Respondent is the holder of license K-5.169859-D issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform power washing and concrete coating for residential and commercial projects. Todd Fries is Respondent’s Operating Manager and Qualifying Party. 2. Respondent was hired by Complainant to power wash Complainant’s painted concrete driveway, concrete patio in the backyard, and concrete patio at the front door. Respondent was to power wash the paint off the driveway, clean an oil stain on the driveway, and remove glued-on outdoor carpeting (including the glue) on the patios. Respondent performed the work in June 2010, but not to Complainant’s satisfaction. 3. Complainant filed a complaint against Respondent in July 2010, complaining about five items: (1) Respondent ruined a putting green installed in Complainant’s backyard next to the patio by letting the acid solution used in the power washing process get on the green;

(2) Respondent left debris in Complainant’s landscaping that should have been cleaned up;

(3) Respondent damaged paint on the bottom of the house in certain areas and on the bottom of the garage door without correcting it;

(4) Respondent did not sufficiently remove the oil stain on the driveway; and

(5) Respondent damaged paint on the corner of the house and did not repair it.

4. ROC Inspector Greg Koeneman inspected the work in August 2010. He made the following findings: (1) He observed the stated “defects” in the putting green but could not determine if the power washing done by Respondent had caused the “defects”;

(2) He found debris (paint chips) from the power washing in Complainant’s landscape;

(3) He found paint removal damage from the power washing on the bottom of the house and garage door;

(4) He could not observe the oil stain because Complainant had hired another contractor who coated the driveway; and

(5) He observed the paint damage on the corner of the house caused by Respondent’s hose.

Inspector Koeneman issued a Corrective Work Order (“CWO”) and ordered Respondent to correct items 2, 3, and 5 above by picking up the debris and painting the areas damaged. 5. Respondent performed the work ordered in the CWO. Because Complainant was not satisfied with the corrective work and did not agree with the Inspector’s conclusion that no corrective action was required for items 1 and 4, Complainant requested a hearing. 6. On January 20, 2011, Inspector Koeneman performed a pre-hearing inspection of the property in which he found that Respondent had properly performed the corrective work ordered in the CWO, except for some minor painting touch-up needed on the stem wall at the front porch under CWO item 3. Inspector Koeneman then testified in support of his findings at the hearing. One issue he addressed at the hearing, regarding CWO item 3, was that the paint on the stem wall stopped about one-half inch above the concrete floor of the patio. He found that the original paint had stopped at that point also and so he only required Respondent to put the paint on the stem wall back to the condition that it was when Respondent began his work. Inspector Koeneman concluded that all corrective work that had been ordered was done, except for the minor paint touch-up.

CWO Item 1—Putting Green 7. Complainant and his wife testified at hearing that the putting green was 6-7 years old and was in good condition before Respondent did its work. They both testified that Respondent allowed the power washing solution to get on the green and that afterward the green was discolored and brittle. Shortly after the work was performed, but before the initial inspection by Inspector Koeneman, Complainant replaced the green with new turf. 8. Complainant submitted four notarized statements about the condition of the putting green turf.[3] Two of the statements are from friends of Complainant and his wife, one of them their next-door neighbor, and state that the turf was in good shape before the power washing occurred.[4] They do not state the condition of the green after the power washing. The other two statements are from Complainant’s son and daughter- in-law: one statement signed by both of them and another signed only by Complainant’s son.[5] Those two statements describe “discolorations” on the turf after the power washing and that the turf was “brittle.” 9. Complainant’s evidence is not sufficient to find that Respondent damaged the putting green turf. Although Complainant has testified and provided statements of family members in order to show that the green was damaged by Respondent, that evidence is not of enough weight to sufficiently support the claim. There is no evidence in the record by someone knowledgeable in the field (a manufacturer or dealer) to show that the acidic solution caused the “discoloration” and “brittleness” that was later observed.[6] CWO Item 2—Debris Cleanup 10. Complainant claims that Respondent has not adequately cleaned up the debris caused by the power washing of the driveway. However, Inspector Koeneman visited the site, observed the condition, and concluded that the cleanup was adequate. His opinion is entitled to the most weight as he has no stake in the outcome of the issue, and he is an unbiased observer. 11. The evidence shows that Respondent adequately cleaned up the debris caused by the power washing of the driveway and does not support a finding that Complainant’s landscaping needs further cleanup. CWO Item 3—Paint Damage on Bottom of Stem Wall and Garage Door 12. Complainant argues that Respondent should not have stopped painting one-half inch above the bottom of the patios. However, Inspector Koeneman found that Respondent painted the portion of the wall that had paint on it prior to Respondent’s work. Therefore, Respondent put the property back to the condition it was before Respondent’s work. Upon review of the photographs by the Administrative Law Judge, it is evident that the unpainted strip on the bottom of the stem wall is the area that was covered by the outdoor carpeting that was removed.[7] That area was not damaged by Respondent and is not Respondent’s responsibility to paint. 13. The evidence supports the Inspector’s testimony that only minor paint touch-up is needed at this time in order to put the paint on the stem wall back to the condition that it was in when Respondent began the work. CWO Item 4—Oil Stain on Driveway 14. Complainant submitted a photograph showing what the oil stain looked like before Respondent did its work and another showing it after Respondent’s work was completed.[8] The stain had been dulled but was still visible on the naked concrete. The stain was then covered by another contractor who pre-treated the stain, acid washed it, then coated over it with a colored coating.[9] The stain is no longer visible. 15. Todd Fries testified for Respondent that the stain had been prepared by Respondent to a condition at which it was ready for the other company to coat over it, which is what Complainant told Respondent was going to happen after Respondent finished its work. Respondent credibly testified that Respondent fulfilled the work that Respondent was hired to do on the driveway stain. 16. The evidence supports the “no action” finding for CWO item 4. CWO Item 5—Paint Damage on House Corner 17. The parties agreed at hearing that CWO item 5 had been corrected by Respondent. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[10] Further, the standard of proof at hearing is by preponderance of the evidence.[11] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[12] Complainant has not met that burden, except for minor paint touch-up work needed for CWO item 3. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule A.A.C. R4- 9-108.[13] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely A.A.C. R4-9-108 which prohibits poor workmanship. 3. As found above, there are minor painting corrections needed at this time. Therefore, the evidence supports finding violations of each citation, but only with respect to the minor corrections needed for CWO item 3. All other items do not show violations of the statutes. 4. A review of Respondent’s current license status shows that the license is current and in good standing since 2001. Respondent has a good history for the ten years it has been licensed. 5. The appropriate sanction in this matter is to allow Respondent to comply with the CWO by making the minor corrections left to do in CWO item 3. If Respondent does so, the complaint should be closed. If Respondent does not do so in a timely manner, the license should be suspended. A civil penalty is not warranted in this case because Respondent made a good faith effort to comply and left only a minor deficiency. RECOMMENDED ORDER IT IS RECOMMENDED that license K-5.169859-D, held by Burns Power Washing Service, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that the August 18, 2010, CWO item 3 has been completely corrected as discussed above and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-[number redacted] shall be closed.

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, February 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1 includes 1A, 1B, 1C, 1D, 1E, and 1F, some of which are photographs. [2] Exhibit A was marked but not admitted due to relevancy. The exhibits marked C and D are correspondence from the ROC that were already part of the complaint file and therefore not separately admitted. Exhibits F, G, H, I, and J are photographs. [3] Exhibits 2, 3, 4, and 5. [4] Exhibits 3 and 4. [5] Exhibits 2 and 5, respectively. [6] For example, this tribunal has no evidence as to what specific solution was used and as to whether such solution could have the effects claimed by Complainant. [7] Exhibit I shows that carpet being removed. [8] Both photographs are in Exhibit 5. [9] Exhibit 1F. [10] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [11] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [12] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [13] There is also a citation concerning the requirement for minimum elements of a contract, but that citation was not addressed at the hearing and Respondent has received a warning letter (dated August 18, 2010) for that citation. The warning letter is a sufficient outcome for that citation.

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