ALJDEC decisions subject to certification as final

2012A-6069-ROC · Registrar of Contractors · 2013-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2013

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by its President and Qualifying Party Mike Broaddus.

WITNESSES: Scott Deering, ROC Inspector Harris Lyall Mike Broaddus Jenny DeSouza, Respondent’s Office Manager

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent based on painting work done at Complainants’ house. The Citation and Complaint issued by the Registrar of Contractors (“Registrar” or “ROC”) alleges violations of failure to meet workmanship standards; failure to comply with a Corrective Work Order; and failure to use a contract that meets statutory minimums. Respondent denies the alleged violations, except for its contract form, which Respondent has since changed. This tribunal entered the complaint file received from the ROC into the record. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no workmanship violations and recommending closure. FINDINGS OF FACT 1. Respondent is the holder of License No. C-34.054299-R, a specialty residential painting contractor’s license issued by the ROC. It authorizes Respondent to perform residential painting work. Mike Broaddus is the Qualifying Party on the license. 2. In August 2012, Complainant was acting as an owner/builder with the help of a construction manager (meaning Complainant was acting as his own general contractor) to build or renovate the home that is the subject of this complaint. Complainant hired Respondent for both exterior and interior painting work. Respondent performed much painting work for the job, which included many change orders. However, due to issues with improper sequencing of construction phases/trades by Complainant and his manager, Respondent eventually refused to do work that Complainant described as “touch up” work. Respondent did not agree that the requested work was touch up work. 3. After Complainant filed his ROC complaint, ROC Inspector Scott Deering inspected the jobsite and, on February 13, 2013, issued a Corrective Work Order (“CWO”) that states the following: Complaint # 1- Abandonment. Failure to complete contract items. At the time of the jobsite inspection it appeared the contract had been completed. No action required by the Contractor.

Complaint.# 2- Back patio paint ceiling never touched up or caulked. Caulking was completed by others. It appears the areas requiring paint touch up on the ceiling were drywall repairs. No action required by the Contractor.

Complaint # 3- Back patio exterior columns not touched up. Stucco repairs. No action required by the Contractor.

Complaint # 4- Exterior perimeter fence walls not touched up. Stucco repairs. No action required by the Contractor.

Complaint # 5- Back Gazebo never touched up. The contract states 32 hours of touch up included. Documentation provided by the Respondent states over 160 hours of touch up was provided. No action required by the Contractor.

Complaint # 6- Retaining walls around pool not touched up. Stucco repairs. No action required by the Contractor.

Complaint # 7- Retaining walls around fire pit not touched up. Stucco repairs. No action required by the Contractor.

Complaint # 8- Walls at Bar-be-que not touched up. Stucco repairs. No action required by the Contractor.

Complaint # 9- Walls at outdoor bar not touched up. Stucco repairs. No action required by the Contractor.

Complaint # 10- Screen walls at a/c unit not touched up. No action required by the Contractor.

Complaint # 11- East side planter wall not touched up. No action required by the Contractor.

Complaint # 12- Front of house, upper left column at balcony not fully painted. Contractor to correct by the appropriate means.

Complaint # 13- Front motor court above cantera not touched up. Stucco repair. No action required by the Contractor.

Thus, only one item (item #12) was ordered to be corrected. Respondent performed that work. 4. After the CWO issued, Complainant filed an addendum to his complaint, adding additional items. Inspector Deering inspected the jobsite again and, on April 17, 2013, issued a letter to Complainant that states the following:

The items listed in the addendum appear to be repair work performed by the stucco sub-contractor and the drywall sub-contractor after the paint was completed. The contract included 32 hours of touch-up painting. The Respondent provided time cards from their employees stating that over 200 hours of touch-up painting was performed at this project. The staircase handrails were installed prior to the walls being painted.

No further corrective work was ordered. 5. Inspector Deering testified that the “touch up” work requested by Complainant was not touch up work but would be considered in the industry as “repainting” work. The repainting was necessary, according to Inspector Deering, because stucco and drywall trades had come in and made repairs after the painting work had been completed. This situation was created by improper sequencing of trades, which was the responsibility of Complainant and his manager. Essentially, Complainant ordered Respondent to paint the drywall and stucco before those surfaces were completed. In fact, extensive repairs were done on top of completed painting that, in turn, damaged the painting work that had been done by Respondent. Inspector Deering testified that this mistake in sequencing of work was the responsibility of the owner/builder, and that the work now requested by Complainant was not touch up work, but was repainting work that was not included in the original contract and that Respondent was allowed to refuse to do unless paid further for the work.[1] 6. Complainant testified that the work he is requesting be done by Respondent is touch up work that was included in the original contract. He disagrees with Inspector Deering. 7. Respondent’s representatives testified in agreement with Inspector Deering. They also testified about their efforts to correct their contract form so that it complies with the statute. The ROC file contains a warning letter issued to Respondent on May 1, 2013, about its failure to comply with the statutory minimum elements of a contract. 8. The evidence supports Inspector Deering’s findings and conclusions. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has not met that burden with regard to workmanship. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship), A.R.S. § 32-1154(A)(13) (prohibiting failure to comply with ROC statutes) regarding minimum elements of contracts, and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). These will be addressed in turn. 3. As found above, the evidence DOES NOT show that Respondent violated A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108, which prohibits poor workmanship. The only item that Inspector Deering found in need of correction was promptly repaired. 4. Respondent clearly violated A.R.S. § 32-1154(A)(13) regarding its contract elements and did not contest that allegation. Respondent provided credible testimony that its contract form has been changed to comply with the statute. Because of this, no disciplinary action is recommended with regard to this violation. 5. Finally, A.R.S. § 32-1154 (A)(23) requires licensed contractors to comply with CWOs unless they have “valid justification” not to do so. Respondent complied with the one item it was ordered to correct. 6. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on December 4, 2013. That prior record shows that Respondent has held the license since 1981 and has never been disciplined. This is an excellent record. 7. The appropriate outcome for this matter is to close the case with no action. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that ROC Case 2012- 6069 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, December 4, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] For example, Complainant had an ornate stair railing put up BEFORE the wall it was attached to was painted by Respondent. This then would have required Respondent to “cut in” a great deal of painting at much more labor time. Respondent refused to do so without extra charge because the standard in the industry is to paint the wall (by sprayer) before the rail is put up. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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