ALJDEC decisions subject to certification as final

2010A-308477530-ROC · Registrar of Contractors · 2011-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2011 APPEARANCES: Ladco, L.L.C. was represented by its authorized representative, Larry Donnenfield. Carolyn Zelek appeared personally. Biltrite, Inc., doing business as Biltrite Gates, was represented by its authorized representative, Brandon Craig. 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 Orders: FINDINGS OF FACT 1. Ladco, L.L.C. (“Ladco”) is the holder of License No. 242657, a Class KB-2 contracting license issued by the Registrar of Contractors (“Ladco”). 2. Biltrite, Inc., doing business as Biltrite Gates (“Respondent”), is the holder of License No. 171946, a Class C-17R contracting license issued by the Registrar. 3. Carolyn Zelek (“Ms. Zelek”) is the owner of a residence located at 23322 N. Dobson, Scottsdale, Arizona. 4. Ms. Zelek hired Ladco for the construction of her residence. 5. On August 1, 2008, Ladco and Respondent entered into a Subcontract Agreement dated July 31, 2008. Respondent’s scope of work was the following: “all labor and material necessary for the supply and installation of the exterior Stairs running from the Master Suite to the ground floor Exterior Patio, including all necessary standard color powder coat painting.” (Emphasis in the original). 6. On October 20, 2010, Ladco filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on the installed exterior stairs. The Registrar designated Ladco’s Complaint as Case No. 2010-[number redacted]. 7. In December 2010, Ms. Zelek also filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on the installed exterior stairs. The Registrar designated Ms. Zelek’s Complaint as Case No. 2010-[number redacted]. 8. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23). 9. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23). 10. The Registrar forwarded Case Nos. 2010-[number redacted] and 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for evidentiary hearings. 11. On May 19, 2011, the three parties stipulated to consolidating the two cases and to holding the consolidated hearing on that date. 12. On November 16, 2010, the Registrar’s assigned inspector, Scott Deering, issued a Corrective Work Order in Case No. 2010-[number redacted] that addressed Ladco’s Complaint items as follows: Complaint # 1 – The installed exterior stairs have shown signs of extreme rust and we need to have them repaired properly. I have left messages for Curtis Cook on two occasions and he has yet to return my calls. This problem has existed almost from the start, to the point that Biltrite sent out a painter to repaint the stairs in late December of 2008. They are still rusting. Contractor to correct paint on exterior stairs by the appropriate means.

Complaint # 2 – With all the painting and the somewhat rough welding on the stairs, there are lines in the paint on the risers of the stairs that the homeowner (Ms. Carolina Zelek) is not happy with. No action required by the contractor.

Complaint # 3 – The contract stated that the stairs would be powder coated and due to the amount of rust that is prevalent now, I am not sure that they ever were? At the time of the jobsite inspection the inspector could notverify [sic]. No action required by the contractor.

13. On December 29, 2010, Inspector Deering issued a Corrective Work Order in Case No. 2010-[number redacted] that addressed Ms. Zelek’s Complaint item as follows: Complaint # 1 – Stairs immediately rusted the first few weeks and finish is not indicative of powder coating. Possible contamination or process was not done or not to powder coating specification. Rust continued on risers and side. Professionals [sic] paint representatives have confirmed not powder coating or improper metal preparation prior to the process, or process not to specification. In addition, attachments could possibly be dis- similar metals contributing to galvanic corrosion. Stairs were delivered late in October and had to be returned for re-cutting. Dimensions were too big in width preventing installation. Stairs returned and were installed several months later had dents that needed Bondo patch on site and Rustoleum spray used for touch-up. Began to exhibit in first few weeks rusting in several places. Late spring 09 Biltrite sent painter with electrostatic urethane heavy paint to overcoat metal surfaces. Proper metal prep. Not [sic] done. Appears incompatible with paint below. Only exposure to rain and I towel dried. No hose cleaning utilized. Contractor to correct peeling paint on the stairs by the appropriate means.

14. On May 16, 2011, Inspector Deering performed a pre-hearing jobsite inspection to view the exterior stairs. Inspector Deering testified that he observed rust in the same areas with some recent rust growth. 15. Homeowner maintenance of the exterior stairs is not determined to be a cause of the rust. The weight of credible evidence established that Ms. Zelek did not utilize water to clean the stairs. The stairs only got wet after a rainfall. Ms. Zelek used towels to dry the stairs after the rainfall. 16. The evidence of record supports Inspector Deering’s conclusions set forth in the two Corrective Work Orders. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matters in these consolidated cases. 2. Pursuant to A.A.C. R2-19-119(B), Ladco and Ms. Zelek have the burden of proof in their respective cases. The burden of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). Case No. 2010-[number redacted] 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar in Case No. 2010-[number redacted]. The evidence of record in that case established Respondent’s deficient workmanship. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar in Case No. 2010-[number redacted]. It is uncontroverted that Respondent failed to comply with the Corrective Work Order issued in that case. Case No. 2010-[number redacted] 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar in Case No. 2010-[number redacted]. The evidence of record in that case established Respondent’s deficient workmanship. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar in Case No. 2010-[number redacted]. It is uncontroverted that Respondent failed to comply with the Corrective Work Order issued in that case. RECOMMENDED ORDER Case No. 2010-[number redacted] Respondent’s License No. 171946 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides the Registrar with written proof, and the Registrar accepts such proof, that Respondent has fully complied with the Corrective Work Order issued in Case No. 2010-[number redacted]. If Respondent provides the Registrar with written proof that it has fully complied with the Corrective Work Order on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves proof of such compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 171946 shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 2010-[number redacted] or the date on which the Registrar approves Respondent’s written proof of its compliance with the Corrective Work Order issued in Case No. 2010-[number redacted], whichever is later. In addition to the above provided penalties imposed in Case No. 2010- [number redacted], Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty in Case No. 2010-[number redacted] pursuant to A.R.S. § 32- 1154(D). The failure of 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-[number redacted] 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. Complaint No. 2010-[number redacted] Respondent’s License No. 171946 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides the Registrar with written proof, and the Registrar accepts such proof, that Respondent has fully complied with the Corrective Work Order issued in Case No. 2010-[number redacted]. If Respondent provides the Registrar with written proof that it has fully complied with the Corrective Work Order on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves proof of such compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 171946 shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in Case No. 2010-[number redacted] or the date on which the Registrar approves Respondent’s written proof of its compliance with the Corrective Work Order issued in Case No. 2010-[number redacted], whichever is later. In addition to the above provided penalties imposed in Case No. 2010- [number redacted], Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty in Case No. 2010-[number redacted] pursuant to A.R.S. § 32- 1154(D). The failure of 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-[number redacted] 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. Certification 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, June 8, 2011.

/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