ALJDEC

96F-H0258-ROC · Registrar of Contractors · 1997-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 22, 1997 in Kingman, Arizona.

APPEARANCES: Dale and Jan Hansen as Complainants; and Michael Anderson, Esq., representing Respondent.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn. _____________________________________________________________________

The hearing in this matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainants moved into their home in July 1994. In May 1996, Complainants filed a formal complaint with the Registrar alleging fifteen specific complainants against Respondent. It is noted that the majority of those items were resolved prior to the hearing in this matter. 2. On August 28, 1996, Registrar’s Inspector issued a Corrective Work Order (CWO) for the completion of six items, three of which were resolved prior to the hearing. 3. At the hearing, the remaining items of complaint were: touch-up paint throughout the house; repair of the sprinkler system; and repair or replacement of the rough floor areas in the garage. 4. On April 15, 1997, Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.23 and 32-1154.A.3 specifically Arizona Administrative Code (A.A.C.) R4-9-108. The matter was then scheduled for hearing in the normal course of scheduling for Kingman area cases. 5. At the hearing, Complaints testified that the paint used for touch- up was a different type (semi-gloss) than the paint on the walls (flat), and the touched-up places now show, rather than match and blend. This was verified by the Registrar’s Inspector. Complainants requested that the entire house be repainted to take care of this. Complainants presented evidence of the rough, uneven, foot-printed and marked garage floor. The condition of the one particular area, and the other general problems, of the garage floor was verified by the Registrar’s Inspector. Complainants argued that the entire floor should be replaced, and are suspicious of any floated repair finish and any paint or industrial topping (which would be a different color) in only the one area. Complainants indicated they believed the coating would have to last thirty years. Complainants testified that the sprinkler system had not been working properly (was not getting enough water through a valve in the system) that there had been incomplete response to their concerns, which resulted in the loss of several plants and a tree. Complainants presented photos of the areas and the dead tree. Complainants presented no evidence of any replacement or replacement costs. Complainants indicated they themselves had fixed the valve. 6. At the hearing, Respondent testified as to much time having been taken by its customer service to deal with the wall and ceiling paint issue. Respondent appears to be willing to continue to work on this issue, but feels it is unreasonable to be asked to repaint the entire house, now three years old and on the market. Respondent indicated they desired to remove the one garage floor section and then float the remaining surface. Respondent is unable to guarantee any coating or, for that matter, any concrete, to last thirty years or a lifetime. Respondent testified that the sprinkler system was installed through a subcontractor, and that this issue was not raised until 22 months after moving in. Respondent testified that it attempted to respond to the CWO, but when they arrived to take care of it, found that the system valve had been replaced or repaired. Respondent argues that any current problems are unknown, and that the Complainants have made changes to the equipment at their own expense. APPLICABLE LAW A.R.S. §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take 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 written directive from the Registrar... . CONCLUSIONS OF LAW 1. With regard to the garage floor, the testimony and evidence showed violation, by Respondent, of A.R.S. §32-1154.A.7, A.R.S. §32- 1154.A.23 and A.R.S. §32-1154.A.3, namely A.A.C. R4-9-108. 2. With regard to the paint, and touch-up paint, it is clear that the Respondent made efforts to comply with the need for touch-up paint on portions of the house. Unfortunately, the use of the wrong type of paint resulted in unacceptable repairs. The testimony and evidence showed violation, by Respondent, of A.R.S. §32-1154.A.23 and A.R.S. §32-1154.A.3, namely A.A.C. R4-9-108. 3. With regard to the sprinkler system, Respondent indicated that the work was performed through a subcontractor. The testimony showed that although efforts to comply with the CWO were made, the repairs had already been made by Complainants. It is unclear whether there are any, and exactly what they might be, continuing problems with the system. However, clearly several plants died while the system was malfunctioning. The testimony and evidence showed violation, by Respondent, of A.R.S. §32- 1154.A.23. RECOMMENDED ORDER 1. In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s ORDER, that the Respondent’s Class B license be temporarily suspended unless the following are completed: a. The replacement of the one section of the garage floor by appropriate measures given its location somewhat in the center of the garage, and the repair of other rough or marked areas by appropriate methods. The parties remain free to come to some agreement on whether to coat or paint the entire floor after the one section is replaced. b. The repainting of all the non-matching touched-up areas. The parties remain free to come to some agreement as to splitting the cost to repaint the entire interior. c. The testing and any needed repair, or replacement of portions of, the sprinkler system. 2. It is further recommended that the license suspension take place unless the Registrar receives written proof from Respondent, with Complainants’ recitation, that the above described repairs or replacements are completed. In that event, then the above recommended temporary license suspension shall not take place and Citation No. H96-0258 shall be closed. RECOMMENDED this day, November 24, 1997.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of November, 1997 to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Specifically, A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 PH (602) 542-9826 / FAX 542-9827