ALJDEC decisions subject to certification as final

2016A-1697-ROC · Registrar of Contractors · 2016-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Janet JoAnne Creech,

COMPLAINANT,

v.

Scott Clarence Gail,

DBA: S C G Painting,

License No. 185748

RESPONDENT.

No. 2016A-1697-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2016

APPEARANCES: Janet Creech, Complainant; Harvey Creech, Complainant’s husband; Lori and Scott Gail, Respondent’s representatives; Jim Dimond, Registrar of Contractors Investigator

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

FINDINGS OF FACT

Complainant hired Respondent to finish the doors in her home. On May 19, 2016, Complainant filed a complaint with the Registrar of Contractors regarding the quality of Respondent’s work and the time it was taking to complete the project.

On June 28, 2016, Jim Dimond, Registrar of Contractors Investigator, conducted a job site inspection at the property. On July 21, 2016, he issued a Directive from the Registrar that was due by August 8, 2016. The Directive ordered Respondent to complete or repair the following items:

You are hereby directed to remedy the following violations by the appropriate means:

The respondent is to correct the 2 exterior door stain and finish at the southern elevation of the home.

The respondent is to also complete the caulk and prep at the door jambs throughout.

The respondent is to correct all overspray, runs and areas of inadequate coverage throughout

The respondent is to correct the stain at the jambs in an appropriate manner.

The respondent is to seal all 6 sides of the doors in an appropriate and correct any doors warped more than 1/4” in any direction.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

On September 25, 2016, Investigator Dimond conducted a pre-hearing inspection. Respondent was unable to attend due to short notice. Mr. Dimond found that some of the corrective work had been done. However, the following problems still remained:

There were still areas of overspray, runs and inadequate coverage. The door jambs were corrected appropriately but the workers left areas of light overspray.

There was unpainted wood on the garage doors and overspray on the garage floor. The doors were sealed but two (2) warped doors were not corrected and the front entry door finish, although done, was rough and had a dent in the wood where the lock set is.

Although Respondent did not provide the doors, Investigator Dimond found that the warping was most likely due to Respondent’s failure to seal all six sides of the doors.

He also found that some of the caulk next to the jambs was failing.

Respondent Scott Gail argued that the drywall was not installed closely to the jambs so they needed additional caulking. Investigator Dimond agreed that Complainant’s chamfered edge jambs is a new technique but he argued that caulk is part of the preparation of an area for painting and if the surface isn’t acceptable it is up to the painter to speak up before applying the paint.

Mr. Gail argued that the doors and jambs were of different types of wood. He said he applied the stain to the jambs that Complainant wanted but she did not like the appearance because different types of wood accept stain differently. Mr. Gail acknowledged that he did not know that when working with soft pine, which was on the jambs, you have to add some red tint so that it won’t turn green. He disagreed that he should have to pay to change the color of the jambs. Respondent’s representative testified that he hired a professional to do the corrective work on the jambs and, although he taped the area, the professional did not control the spray enough. He said if he would have had the time, he would have gone over all the paint touch-up areas and probably could have completed all the painting, but he had to use too much of the time allotted to him to strip the jambs. He said that he always seals all six sides of the outer doors but he did not do the interior doors because they are not exposed to the weather. He said that he needed more time to caulk the gaps between the drywall and the jambs because the gaps were wide enough that they required repeated applications of caulking; however, the caulk required time to dry between applications.

Complainant argued that now that Respondent has worked on the home, the entire home has to be repainted, including removing the caulk and re-doing it. She estimated that it would require $9,000.00 to $11,000.00 to correct the work.

Respondent testified regarding the remainder of the work to be corrected and completed and estimated that it would not take more than $5,000.00 to correct at the most. He said it would take 3 workers no more than 2 days to complete all the remaining work, which he would have done if he had not run out of time.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) and (22).

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. It was undisputed at hearing that the items identified by the Registrar of Contractors Investigator in the Directive did not meet workmanship standards. Therefore, the evidence at hearing established a violation of this section of the law.

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time. Respondent’s justifications for the portion of the Directive that was uncompleted were not valid. Specifically, his argument that Complainant changed her mind on the color of the jambs was prefaced by his admission that the original jambs turned green because he did not know to mix red coloring in the stain when working with soft pine. It is Respondent who was hired to be the professional in this matter and he bears the responsibility for his error. As Respondent is a painting contractor, he is expected to know about wall treatments. If knowing about wood treatment is outside the scope of his work, he should not have accepted the job. Although it is understandable not to know everything in one’s profession, it is inappropriate to require Complainant to bear the cost of Respondent’s mistake when he accepted the job.

Respondent also argued that it took additional time to fill in the gaps left by the drywall installation. While this may be so, it was Respondent’s responsibility to plan the work so that the caulk had time to dry, if that is what was needed. Respondent failed to complete the work in the Directive so that it met workmanship standards; therefore, Respondent was in violation of that section of the law.

While Complainant did establish the above violations in this matter, she did not establish any reason why her entire home has to be repainted or why anyone would take out the caulking only to caulk the gaps again. Complainant only established that the remaining work involves touching up the paint, touching up the caulk in some, but not all, of the gaps by the jambs, replacing 2 warped doors, refinishing or replacing the front entry door so that its surface is smooth, and correct the front entry door dent that is in the area of the lock set.

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. Respondent’s license record on the Registrar of Contractors website is in good standing with only one open complaint against it.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license (License No. 185748) be suspended for one day.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, November 7, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors