ALJDEC decisions subject to certification as final

2012A-4435-ROC · Registrar of Contractors · 2013-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2013 APPEARANCES: Complainant Anthony Senarighi appeared on his own behalf. Donald Rea appeared on behalf of Respondent Classic Garage, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________

The question presented by this matter is whether Respondent Classic Garage, Inc. (“Classic”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Classic is the holder of License No. C-5.231777-R issued by the Registrar of Contractors (“ROC”). Classic’s Class C-5R license is limited to concrete coatings. Donald Rea is Classic’s qualifying party and an officer of Classic. 2. On April 26, 2011, Complainant Anthony Senarighi contracted with Classic for Classic to apply an epoxy coating on the outside wooden deck of Mr. Senarighi’s home located in Prescott, Arizona. See Exhibit 1. The contract price was $3,600.00. Id. Mr. Senarighi paid Classic in full. Classic had previously performed work at Mr. Senarighi’s home that encompassed coating the concrete garage floor and a concrete patio. 3. On May 5, 2011, Classic performed its work to the deck. 4. Mr. Senarighi was dissatisfied with Classic’s work on the deck. Consequently, on September 11, 2012, Mr. Senarighi filed a complaint against Classic with the ROC. In the complaint, Mr. Senarighi alleged the following in pertinent part: The deck flooring on the south side of the house is splitting and coming apart from the deck flooring. The rest of the deck flooring around the house is starting to crack and split including the small deck on the south side of the house.

5. ROC Inspector Rick Emry investigated Mr. Senarighi’s complaint. 6. On October 4, 2012, Inspector Emry conducted a jobsite inspection at which Mr. Senarighi, Mr. Rea, Classic’s materials supplier, and Classic’s installer were present. 7. On October 16, 2012, following the jobsite inspection, Inspector Emry issued a Corrective Work Order (“CWO”) under which the ROC allowed Classic days to take corrective action as follows: The respondent in this complaint has completed out of scope work according to documents on file with the Registrar of Contractors and cannot perform the repair work himself.

#1 – The deck flooring on the south side of the house is splitting and coming apart from the deck flooring. There is severe cracking and splitting of the brown granulated Epoxy/Polymer coating. Respondent shall correct by appropriate means using a properly licensed contractor.

#2 – The rest of the deck flooring around the house is starting to crack and split including the small deck on the south side of the house. There are numerous cracks in the epoxy coating throughout the surface of the east and north covered deck. The exposed deck adjacent to the master bedroom also had noticeable cracks and splitting of the epoxy coating. Respondent shall correct by appropriate means using a properly licensed contractor.

Exhibit 5. (Emphasis in original.)

8. Inspector Emry testified consistently with the findings and directives contained in the CWO. Inspector Emry further testified that the deck is approximately 1,000 square feet in surface and is constructed of wood frame with a rubber membrane and epoxy coating. Inspector Emry described the splitting and cracking as being three to five inches in some areas, 18 inches in others, and up to 30 feet in other areas. Inspector Emry testified that he had the opportunity to speak with the supplier of the epoxy material at the jobsite inspection and that he inquired as to the procedures to be followed when applying the epoxy coating over a membrane. Inspector Emry testified that the supplier advised him that there were no instructions available for this type of application. Inspector Emry testified that because there are no procedures in place for this type of installation, he “can only assume” that the epoxy material installed by Classic is “not meant to be put on a rubber membrane.” 9. Inspector Emry testified that a Notice of Out of Scope Activity was issued to Classic because Classic’s license only allows Classic to apply coatings on concrete surfaces, and the work that Classic was performing requires a C-34R license for surface preparation and waterproofing for urethane coatings on wood decks. Mr. Rea did not dispute at hearing that Classic performed work at Mr. Senarighi’s home outside the scope of Classic’s license. 10. Inspector Emry conducted a pre-hearing inspection on February 7, 2013, at which Mr. Senarighi and Mr. Rea were present. Inspector Emry testified that the corrective work had been performed and a similar epoxy coating had been applied to the deck. However, Classic did not perform the corrective work because Mr. Rea was concerned that the cold temperatures would negatively impact the corrective work, and therefore, he wanted to wait until the spring when he felt temperatures were more conducive to the application of epoxy coating. However, Mr. Senarighi did not want to wait to have the corrective work performed and hired another contractor to repair the coating on the deck. 11. Inspector Emry opined that because Classic accepted the surface on which it installed the epoxy coating, it is responsible for the cracking and splitting. 12. Mr. Senarighi offered several photographs into evidence that he testified he took in late October 2012, which depict cracking and splitting of the deck. See Exhibit 3. Mr. Senarighi testified that he called Mr. Rea on July 26, 2012, to inform him that there was a problem with the coating of the deck in that it was cracking and loosening. Mr. Senarighi testified that Mr. Rea told him to purchase an exterior rug to cover up any issues. However, on August 14, 2012, Mr. Rea went to Mr. Senarighi’s home to view the deck and offered to replace the coating for an additional sum. Mr. Senarighi testified that because he found Mr. Rea’s offer unacceptable, he filed a complaint with the ROC. 13. Mr. Senarighi testified that Western Sealant Co., Inc. performed the deck repair, which began on November 19, 2012, and was completed on December 6, 2012. Mr. Senarighi submitted Western Sealant Co., Inc.’s proposal into evidence, which was in the amount of $10,190.87. See Exhibit 7. Mr. Senarighi also submitted into evidence a proposal from Central Basin Roofing, Inc. in the amount of $12,326.00. Id. 14. Mr. Rea testified that Classic patched the membrane of the deck before Classic applied the epoxy coating. Mr. Rea testified that notwithstanding the patch work, the membrane continued to “come apart” after Classic applied the coating because the membrane “was damaged goods.” Mr. Rea testified that Classic made every effort to remove and re-install the coating and attempted to follow the rules of the ROC by having a C-34R licensed contractor perform the corrective work to Mr. Senarighi’s deck within the time allowed by the CWO. Mr. Rea testified that Mr. Senarighi would not allow the contractor chosen by Classic to perform the work. However, Mr. Rea further testified that he was concerned about performing the corrective work in cold weather, spoke with his supplier, and decided that he “did not want to risk it.” Mr. Rea testified that he was instructed by his supplier to wait until the weather was warmer and therefore, that he wanted to wait until the spring to remove the membrane, replace it, and coat it. Mr. Rea testified that he was not given the opportunity to perform the corrective work because Mr. Senarighi did not want to wait until the spring and hired another contractor instead. 15. Mr. Rea testified that he could not understand why Classic would be responsible for the membrane when Classic only applied a coating to it, rather than installing the membrane itself. Mr. Rea testified that he feels that Mr. Senarighi is taking advantage of Classic because he received a new membrane, despite the fact that the old membrane was defective and inferior, and that Classic should not be responsible for the membrane. 16. The Administrative Law Judge finds that the condition of the membrane of the deck was pre-existing and that Classic, by proceeding to apply the coating, had effectively accepted the surface/condition of the deck as being adequate to support its work, especially in light of the fact that Classic was aware of the existing imperfections in that membrane, as attested to by Mr. Rea. Upon contracting to apply a coating, and in conjunction therewith guarantee its workmanship, a contractor accepts the surface as being adequate to support its work. 17. Administrative notice is taken of Classic’s prior license record as reflected on the ROC’s public website on February 20, 2013. Such prior license record reflects that Classic’s License No. C-5.231777-R was current. CONCLUSIONS OF LAW In this proceeding, Mr. Senarighi bears the burden to prove, by a preponderance of the evidence, that Classic is subject to discipline for violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32- 1154(A)(17), and/or A.R.S. § 32-1154(A)(23) as charged by the ROC in its December 3, 2012 Citation and Complaint. See A.A.C. R2-19-119. 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). The Administrative Law Judge concludes that Mr. Senarighi met his burden of proof as to each of the ROC’s three charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Classic with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Classic failed to perform its work at Mr. Senarighi’s home in a professional and workmanlike manner as evidenced by the condition of the deck shortly after Classic performed its work. Therefore, the Administrative Law Judge concludes that Classic violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Under A.R.S. § 32-1154(A)(17), a contractor is subject to discipline for “knowingly contracting beyond the scope of the license or licenses of the licensee.” Classic is the holder of a Class C-5R license, Concrete Coatings. The evidence of record established that Classic contracted to perform work and actually performed work beyond the scope of its license, specifically applying a coating to a deck that is not constructed of concrete for which a Class C-34R license is required. “‘Knowingly’ imports only a knowledge that the facts exist that bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.” A.R.S. § 1-215. “‘Notice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’” Maricopa Utilities Co. v. Cline, 60 Ariz. 209, 214, 134 P.2d 156 (1943) (quoting Schneider v. Henley, 61 Cal. App. 758, 763, 215 P. 1036, 1038 (1923)). Because Classic should have known that its Class C-5 residential license did not allow it to perform the application of coatings other than on concrete surfaces, the record establishes that Classic violated A.R.S. § 32- 1154(A)(17). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued to Classic a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that while Classic may have intended to comply with the CWO, it did not do so. Classic was given 15 days from October 16, 2012, to comply with the CWO. Classic contended that it did not perform corrective work due to the cold temperatures and wanted to wait until the spring. Classic failed to present any evidence establishing that cold temperatures would be detrimental to the corrective work, and Mr. Senarighi’s replacement contractor performed the work in November and December 2012, when the temperatures would have been colder than in October. The Administrative Law Judge concludes that Classic violated A.R.S. § 32- 1154(A)(23). Based on the foregoing, it is appropriate for the ROC to impose discipline against Classic’s Class C-5R license. 8. The Administrative Law Judge concludes that the ROC should revoke Classic’s Class C-5R license subject to the condition that Classic can avoid such revocation by paying to Mr. Senarighi the amount he paid to have the corrective work performed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that Classic’s License No. C-5.231777-R shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Classic pays to Mr. Senarighi the amount he paid to have the corrective work performed, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Classic’s Class C-5R license shall be placed on disciplinary probation for a period of 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, in addition to the above-provided penalty, if any, that Classic pay the sum of $500.00 to the ROC by way of a civil penalty pursuant to A.R.S. (32-1154(D). The failure by Classic 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 Classic’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Classic, 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, February 20, 2013.

/s/ Sondra J. Vanella 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