ALJDEC decisions subject to certification as final

2012A-2512-ROC · Registrar of Contractors · 2012-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2012, at 8:00 a.m. APPEARANCES: Frank DiDea (hereinafter “Complainant”) appeared through his attorney, Veronica L. Manolio, Esq., Kelhoffer, Manolio & Firestone Law Firm. Gilbert’s Painting LLC (hereinafter “Gilbert”) appeared through its Qualifying Party, Travis Wayne Gilbert. 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. Gilbert is the holder of License No. C-34.266863-R issued by the Registrar of Contractors. 2. This is a residential matter wherein Gilbert performed painting work on Complainant’s residence. 3. Complainant was dissatisfied with Gilbert’s workmanship and declined to pay Gilbert for its painting work. When Gilbert filed a civil action against Complainant in an attempt to obtain payment for its painting work, Complainant filed a formal Complaint against Gilbert with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Beau Cruz (hereinafter “Inspector Cruz”), conducted an onsite inspection. Inspector Cruz issued a written Corrective Work Order on June 11, 2012, directing Gilbert to perform designated corrective work on Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: The contractor is to correct the following by the appropriate means

2. New stripes added to the house from contractor patching stucco cracks, extremely visible from any distance, cracks do not match existing texture; they protrude outward and have a different sheen. (All over the house walls): Visible paint flashing due to patching of stucco [cracks] noted throughout exterior of structure, as well as raised areas of stucco patching visible on south wall of attached garage and patio area.

3. Some stucco cracks after patching are re-cracking/appearing (Rear of the house where back patio connects with main back wall, approx. above BBQ area): Patched crack at the rear of the house where back patio connects with main back wall, is cracked or separated again as well as along upper top of 2nd parapet wall, and also at the area where the walls intersect by the upper bedroom window at the front of the structure.

4. Many major cracks not repaired (Front of the house above front porch, along parapet wall connecting to main front wall by the 3 second story windows, along many of the parapet walls): Many cracks noted at the front of the house above front porch, numerous parapet walls and along parapet wall connecting to main front wall by the 3 second story windows.

6. Only a single coat applied. (3 coats to be applied, 2 by sprayer (one vertical/one horizontal), 1 with roller, process not followed as witnessed by Party. Clearly evident along top of parapet wall in front of the house by the 3 second story windows. Contractor explained to the Party the painting process in order to remove the stripes.): The area(s) are at the front of the house along top of parapet wall in front of the house by the 3 second story windows and front entry.

8. Windows and doors jambs not caulked (Contractor agreed to do and signed document): All windows and doors in the back patio area, front entry and front of house area, were not caulked.

9. Light sconces not painted (Contractor agreed to do and signed document): Noted, that the light sconces (8) have not been painted to existing color.

11. Beehive fireplace still has major cracks and stucco is peeling. (See rear side of fireplace, Contractor agreed to do and signed document): Large horizontal cracking present at the rear of the fireplace.

13. Wooden Vegas look terrible, have an ugly finish (streaky, gummy and lumpy), were never sanded and are already cracking where caulking applied: Cracks in the applied caulking of the “Wooden Vigas” pillars/posts for the rear patio roof, do not appear not to have been sanded properly to a consistent wood finish, lumpy finish in some areas, paint drips, areas of paint brushing noted.

14. Patio lids applied with new mud not sanded to match existing smooth finish prior to painting. See back patio by double doors above light sconce. Contractor was notified of this on Saturday 04/28/12, said he would correct, did not: Approximately three patched areas on the surface of the rear patio lid that do not appear to be properly sanded to match adjacent surface of the Santa Fe finish of the rear patio lid (ceiling).

15. Paint sprayed on the natural flagstone of the beehive fireplace, bottom right side of arch: Noted paint overspray on the bottom right side of arch face of the natural flagstone “beehive” fireplace.

17. Overspray on new (one month old) “white” foam roof: Areas of paint overspray on the surface of the foam roof section (east section of roof), above the rear patio area.

16. Paint dripped and sprayed on the natural flagstone patio along with tape residue (Big spots under back patio, big spill by water valve under back patio which appears to might have been chemically treated, a lot of over spray along back walkway by A/C unit wall): Areas of paint overspray on the surface of the flagstone (back patio), along back walkway adjacent to the wall section of the condensing unit and masking tape residue on the surface of the flagstone surface of the BBQ countertop.

18. Overspray on rear black entry gate on garage side: Paint overspray on the interior area of the face of the upper rail of rear black entry gate on garage side (south facing wall of garage).

No action required of the following 1. Existing house stripes still visible on house (Contractor agreed to do and signed document): This inspector is not able to determine or discern existing stripes from the new stripes, on the exterior wall of the structure as per item #1 of only proposal/contract signed by contractor.

5. Paint color does not match existing house color, too dark. Clearly evident where painter missed painting on bottom side of the North banco wall connecting to the beehive fireplace, Contractor agreed to do and signed document): Noted that the color of paint on bottom side of the North “Banco” wall connecting to the beehive fireplace that is approximately 10" x 2" is lighter in color, although it should be noted that this color has been exposed to the sun for approximately 5 years and is faded, therefore, it is this inspector[‘s] opinion, that the contractor matched paint according to what complainant wanted as per sample provided by complainant and as per item #14 of proposal/contract signed by contractor.

7. Doors not sanded (Contractor agreed to do and signed document): Noted that the doors, were not sanded after one coat of varnish was applied. Allegation that they [were] not allowed back in to finish was also corroborated by the complainant, in that they were not honoring terms of signed scope of work, and would not [be] [allowed] back in to complete the door(s). It is this inspector’s opinion that contractor, was impeded by the complaint to properly sand and finish the back French Doors that lead from the interior kitchen to the rear patio as per item #4 of only proposal/contract signed by contractor.

10. Beehive fireplace decorative clay chimney painted: Complainant stated that the contractor painted the chimney. This inspector is not able to determine if chimney was painted prior to contractor allegedly painting chimney.

12. Utility boxes painted (Gas meter, Cox, outdoor alarm siren, etc., contractor agreed not to paint and reminded twice): This inspector is not able to determine if utility boxes painted (Gas meter, Cox, outdoor alarm siren, etc.), were painted prior to contractor allegedly painting afore mentioned items therefore, is unable to apply responsibility to contractor as per item #12 of only proposal/contract signed by contractor.

16. Paint dripped and sprayed on the natural flagstone patio along with tape residue (Big spots under back patio, big spill by water valve under back patio which appears to might have been chemically treated, a lot of over spray along back walkway by A/C unit wall): This inspector is unable [to] opine or apply responsibility [for] stained area (greenish hue in color), by that water valve (spigot) under that back patio was indeed paint overspray that was chemically treated , or due [to] faded green coiled water hose that is connected to water valve (spigot), under that back patio.

19. Palo Verde tree maliciously damaged by Contractor with his trailer while leaving Party’s property on Monday 04/30/12 at ~ 4pm witnessed by Party: Noted [splitting] on branch of the Palo Verde tree on the lower branch section above the driveway. Sections of the branch appear to have been impacted by object or vehicle. This inspector is unable to opine or apply responsibility to respondent, due to the fact that this inspector was not present to witness.

6. Inspector Cruz testified that he performed a pre-hearing inspection at Complainant’s residence on November 26, 2012. Inspector Cruz stated that no corrective action had occurred. Inspector Cruz testified that Gilbert had departed from or disregarding specifications in its stucco patching work on Complainant’s residence. Inspector Cruz stated that the painting work performed by Gilbert on Complainant’s residence did not comply with applicable industry standards. Inspector Cruz testified that Gilbert’s supervisor admitted that there was an insufficient amount of paint applied to Complainant’s residence.[1] 7. Inspector Cruz testified that Gilbert had violated applicable industry standards by allowing paint overspray on various portions of Complainant’s residence. Inspector Cruz stated that he observed that there was a great deal of animosity between Complainant and Gilbert’s qualifying party, Travis Wayne Gilbert (hereinafter “Mr. Gilbert”). Inspector Cruz stated that he issued the Corrective Work Order while Complainant was on vacation in Italy. Inspector Cruz acknowledged that Complainant had informed him of the trip to Italy. Inspector Cruz testified that he was informed that the parties had entered into an agreement for Gilbert to inspect Complainant’s residence with a paint manufacturer’s representative and then to perform some sample repair work on Complainant’s residence. Inspector Cruz stated that he was informed that Gilbert repudiated the agreement and arrived at Complainant’s residence to perform corrective work on a Sunday and was denied access by Complainant.[2] 8. Complainant testified that he retained Gilbert because there were aesthetic issues with his house. Complainant stated that the sole reason for the construction project was the “striping” that was evident on the exterior of his home. Complainant testified that Gilbert’s painting work made the problem “100 times” worse.[3] 9. Complainant testified that he prepared the written list of construction items specifically for Gilbert. Complainant stated that he interviewed five different painters and selected Gilbert because Mr. Gilbert indicated that he understood the cause of the striping and knew how to correct the striping condition. Complainant testified that Mr. Gilbert informed him that no down payment was required and that if Complainant was ultimately unsatisfied, there would be no charge to the Complainant.[4] 10. Complainant testified that he had a 30 to 40-minute interview with Mr. Gilbert before selecting Gilbert to perform the construction project. Complainant stated that the parties then performed a 20 to 30-minute onsite inspection of his residence. Complainant testified that he was never provided a written contract by Gilbert.[5] 11. Complainant testified that the parties’ construction agreement was based solely on a typed list of work[6] that specified the construction work to be performed by Gilbert. Complainant stated that Mr. Gilbert signed the list of work to be performed on April 24, 2012. Complainant testified that he reviewed the list “line by line” with Mr. Gilbert and discussed each item with him before Mr. Gilbert signed the document. Complainant acknowledged that he prepared the work list.[7] 12. Complainant testified that after the first day of painting was completed, he observed that the striping condition was worse and that the new color of paint did not match the existing color. Complainant stated that he contacted Mr. Gilbert and demanded that Gilbert stop work on his residence. Complainant testified that Mr. Gilbert agreed to stop work and review Complainant’s concerns with him. Complainant stated that the parties agreed to meet at his residence on Sunday morning to conduct the agreed upon review of Gilbert’s painting work.[8] 13. Complainant testified that Mr. Gilbert called him and acknowledged that the painting work performed by Gilbert was unacceptable and asked for an opportunity to correct the unsatisfactory work. Complainant stated that he agreed, provided that no further painting work was performed until Gilbert could devise a method to remove the unacceptable striping from Complainant’s residence. Complainant testified that Mr. Gilbert then informed Complainant that the striping could not be removed.[9] 14. Complainant testified that he would not have entered into a construction agreement with Gilbert had he known that the striping could not be removed. Complainant stated that Gilbert then brought a “stucco guy” to inspect the striping problem. Complainant testified that after the stucco was inspected, the parties agreed that Gilbert would be allowed to perform a sample of the type of possible corrective work that could be performed by Gilbert.[10] 15. Complainant testified that the sample corrective work was supposed to take place on a Saturday. Complainant stated that he furnished Gilbert with written documentation of the agreement to perform a sample test of Gilbert’s proposed corrective work. Complainant testified that Mr. Gilbert informed him that Gilbert was not going to adhere to the parties’ agreement and that no sample test work would be performed. Complainant stated that he was informed on a Friday that Gilbert would be arriving at Complainant’s residence on Sunday to perform the corrective work required by the Corrective Work Order. Complainant acknowledged that he would not allow Gilbert access to his residence to perform corrective work, other than the agreed-upon test sample.[11] 16. Complainant’s testimony is found to be credible. 17. Complainant’s denial of access to Gilbert unless Mr. Gilbert first performed a test sample on his residence is found to be unreasonable. The Registrar of Contractors does not specify methods of repair nor does it allow a Complainant to dictate a method of repair. Instead, the Registrar of Contractors allows a licensed contractor to select its chosen method of repair at its peril. The Corrective Work Order must be fully complied with and all construction work must comply with applicable workmanship and industry standards. 18. Complainant’s wife, Caroline DiDea (hereinafter “Ms. DiDea”), testified that Gilbert failed to provide Complainant with a written contract. Ms. DiDea stated that she was present for a conversation between Complainant and Mr. Gilbert wherein Mr. Gilbert agreed to have Gilbert’s painting work inspected by an alternative painting contractor and a stucco contractor and then perform a sample test on Complainant’s residence on an agreed-upon Saturday. Ms. DiDea testified that Gilbert failed to appear on that the agreed-upon Saturday and then refused to comply with the terms of the parties’ agreement. Ms. DiDea denied that Complainant had ever denied Gilbert access to Complainant’s residence.[12] 19. Ms. DiDea testified that the painting work on her residence is unacceptable and embarrassing. Ms. DiDea stated that she could accept the slight color difference between the old paint and the new paint but that the striping was very evident from the road and was completely unacceptable.[13] 20. Ms. DiDea’s testimony is found to be credible. 21. Gilbert’s qualifying party, Mr. Gilbert, acknowledged that he had agreed to have an independent paint expert and an independent stucco expert inspect Complainant’s residence on a Saturday. Mr. Gilbert stated that no work was performed because Complainant was unwilling to grant Gilbert access to perform the corrective work required by the Corrective Work Order. Mr. Gilbert testified that Complainant did not complain about Gilbert’s work until Complainant’s entire house was painted. Mr. Gilbert stated that he repeatedly attempted to gain access to Complainant’s residence and was always denied access by Complainant.[14]

22. Mr. Gilbert acknowledged that he signed the work list provided by Complainant. Mr. Gilbert testified that he gave Complainant a written contract and asked Complainant to sign it. Mr. Gilbert stated that Complainant failed to return Gilbert’s contract to him. Mr. Gilbert stated that he did not read the work list that he signed. Mr. Gilbert testified that he suffers from dyslexia[15] and has great difficulty in reading and writing. Mr. Gilbert acknowledged that he did not inform Complainant of his disability. Mr. Gilbert testified that he did not inform Complainant because of personal embarrassment.[16] 23. Mr. Gilbert testified that the painting work performed by Gilbert was good work and in accordance with applicable workmanship standards. Mr. Gilbert acknowledged that there were some minor painting items that should be corrected. Mr. Gilbert stated that the problem was that Complainant did not want to pay Gilbert for its work. Mr. Gilbert acknowledged that Gilbert performed no corrective work after the Corrective Work Order was issued on Complainant’s residence. Mr. Gilbert testified that he tried to perform the directed corrective work but was denied access by Complainant.[17] 24. Gilbert cannot simply designate a Sunday and demand access to Complainant’s residence and reasonably expect to have access provided. Gilbert should provide Complainant at least 72 hours of written notice for a normal work day, Monday through Friday, that Gilbert is requesting access to perform the corrective action. It is expected that Gilbert will coordinate its request to match Complainant’s schedule to arrange the corrective work to take place on a day that is mutually convenient. 25. Administrative notice is taken of Gilbert’s prior license record as reflected on the Registrar of Contractors’ public website on December 10, 2012. Such prior license record reflects that License No. C-34.266863-R of Gilbert is current with one open complaint. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The only written document is the work list prepared by Complainant. The work list summarized the parties’ oral construction agreement. All of the items set forth in the written work list were discussed with Gilbert’s qualifying party. Gilbert was aware of the construction work that it agreed to perform. Gilbert departed from or disregarded the items of the written work list and the parties’ oral construction agreement by failing to perform agreed-upon crack repairs and by applying one coat of paint rather than three coats of paint. This Tribunal concludes that Gilbert violated the charged provision of A.R.S. § 32- 1154(A)(2).[18] 4. The assigned Agency Inspector verified that there was extremely visible paint flashing throughout the exterior of Complainant’s residence, that the paint applied by Gilbert failed to match the existing paint on Complainant’s residence, that there was a great deal of paint overspray on Complainant’s roof and flagstone, and that an insufficient amount of paint had been applied to Complainant’s residence. This Tribunal concludes that Gilbert violated the charged provision of A.R.S. § 32- 1154(A)(3),[19] namely, A.A.C. R4-9-108.[20] 5. A written Corrective Work Order was issued on June 11, 2012, directing Gilbert to perform designated corrective work on Complainant’s residence. There was no dispute that no corrective work was performed on Complainant’s residence. Complainant denied Gilbert access to his residence unless Gilbert agreed to first perform a test sample. Nothing in the Corrective Work Order required Gilbert to perform a test sample on Complainant’s residence. Complainant’s denial of access based upon Gilbert’s refusal to perform a test sample is found to be unreasonable. However, Complainant’s refusal to grant Gilbert access to his residence to perform corrective action on a Sunday selected solely by Gilbert is found to be justified and reasonable under the circumstances. This Tribunal concludes that that the credible evidence of record is insufficient and fails to support a conclusion that Gilbert violated the charged provision of A.R.S. § 32-1154(A)(23).[21] RECOMMENDed order In view of the foregoing, it is recommended that Gilbert should be given one final opportunity to perform the directed corrective work and that Complainant should be given one further opportunity to accept the performance of the directed corrective work. It is further recommended that commencing on the effective date of the Registrar’s Order, License No. C-34.266863-R of Gilbert shall be suspended until the Registrar of Contractors receives and accepts written proof that Gilbert has fully complied with the terms of the written Corrective Work Order issued in this matter or that Complainant has denied reasonable access to Gilbert to comply with the terms of the Corrective Work Order. It is further recommended that if on or before the effective date of this Order, Gilbert provides acceptable written proof that it has fully accomplished the above described corrective action or been denied reasonable access to Complainant’s residence to perform the directed corrective action, then the above provided License suspension shall not take place and this matter shall be closed. In the event of certification of this 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 the certification. Done this day, December 20, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 12/5/12 Hearing Record (Hereinafter “H.R.”) at 30:39-43:05. [2] H.R. at 43:25-47:53. [3] H.R. at 54:33-56:51. [4] H.R. at 56:52-59:59. [5] H.R. at 1:00:00-1:02:01. [6] See Exhibit No. 3 (List of specified construction items to be performed). [7] H.R. at 1:02:02-1:02:45. [8] H.R. at 1:02:46-1:06:10. [9] H.R. at 1:06:11-1:08:15. [10] H.R. at 1:08:16-!:09:16. [11] H.R. at 1:09:17-1:19:25. [12] H.R. at 1:29:27-1:31:50. [13] H.R. at 1:31:51-1:34:40. [14] H.R. at 1:35:00-1:41:40. [15] Dyslexia /is defined as a variable often familial learning disability involving difficulties in acquiring and processing language that is typically manifested by a lack of proficiency in reading, spelling, and writing. Merriam-Webster.Com. [16] H.R. at 1:41:41-1:50:30. [17] H.R. at 1:50:31-2:00:08. [18] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [19] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [20] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[21] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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