ALJDEC

97F-2416-ROC · Registrar of Contractors · 1997-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on November 12, 1997. The Complainant appeared in his own behalf, and the Respondent appeared through its President and qualifying party, Christopher Ian Lawry and its Secretary Shawna Marie Lawry. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Respondent performed extensive restoration work in Complainant's residence following damage to the structure. Most all of the work was the result of an insurance claim filed with Complainant's insurer.

2. At the outset of the scheduled hearing, Complainant stated that the sole items remaining for determination at this administrative proceeding related to the performance of repairs on and around numerous clipped nails under the eaves and to a damaged piece of tile in the entry. All other items of complaint were either no longer in issue or were to become the subjects of future actions for monetary relief in another, more appropriate forum.

3. As part of the roofing portion of the authorized work by Respondent, the installation work necessarily involved the attachment of materials to the roof sheathing by numerous nails which were required to and did penetrate through the surface. Primarily due to the absence of exterior soffit material, a significant quantity of nail heads had visibly protruded through the underside of the eaves.

4. All exposed nail penetrations, protruding through the underside of the eaves, were subsequently clipped by Respondent following a jobsite visit by the Registrar's assigned Inspector who had included this item as part of a written directive, having determined that the applicable local industry standard required such clipping. The testimony was sharply conflicting as to whether, prior to the filing of the within complaint and/or prior to the corrective work efforts by Respondent, the eaves had been painted by or on behalf of Complainant who had directly received advance reimbursement from the insurance carrier.

5. It was not disputed that the ends of the nail penetrations clipped by Respondent and the adjacent disturbed surface areas on the eaves were not and are still not patched and painted. Additionally, to the extent that Complainant's assertion is accurate with respect to the eaves having been painted before the nail clipping, which version appeared more credible in light of certain documentary evidence that payments were earlier transmitted to the painting subcontractor, Complainant was shown not to presently possess any exactly matching surplus paint which could be made available for Respondent's use in performing the patching and finishing work. Despite the somewhat questionable wisdom on the part of Complainant in not providing or identifying the exact paint used or to be used for the eaves, Respondent does not have an absolute right to receive and to use such paint, if available, or even to have the paint color and/or manufacturer disclosed.

6. It is found and determined that Respondent is responsible to properly complete and finish repairs in all locations where the protruding nail ends were clipped. This obligation does not necessarily include the complete repainting of the eaves, since the remedial work requires only a reasonable matching, within acceptable industry tolerances and standards, of the abutting surfaces as they presently exist, whether or not recently repainted. All necessary patching and paint materials for this relatively minor touch up task must be provided by Respondent at no added cost to Complainant.

7. A small chip on the surface area of a single ceramic tile piece in Complainant's 8-foot by 10-foot entry was allegedly caused during the moving of a piano by Respondent over that location. The piano move was part of Respondent's contractual undertaking, and it did appear that the workmen, while carrying the piano through the entry, had allowed it to impact on the entry floor in the vicinity of the chipped tile piece.

8. The testimony tended to indicate that the overall prior condition and appearance of the tile in the entry was far from aesthetically uniform, with substantial voids existing in the grout, admittedly caused by the homeowner's pet, and another single tile piece in a less prominent location also revealing a visible chip and/or a crack. The size of the newer chip attributed to Respondent's piano moving effort was shown to be exceedingly small, and it remains unclear whether the previously existing grout deficiencies contributed to or even were a dominant causation factor for the tile becoming chipped when the piano contacted the surface.

9. It must be held that, for the purposes of evaluating the existence or extent of Respondent's duties under the State's contracting laws, Complainant has not sustained his burden of proving that Respondent actions proximately caused the complained-of chip to the tile piece or that

it is otherwise responsible for replacing the chipped tile piece, much less for replacing all or a major portion of the entire eight or nine year old entry tile in the event of any present unavailability of a reasonably acceptable color match at this time.

10. Respondent asserted its belief that Complainant's prior receipt of a direct payment from the insurance carrier for the purpose of accomplishing certain exterior painting would effectively relieve Respondent from any duty to complete the repairs in the clipped nail areas. While not operating to eliminate the obligation to perform further corrective work, such belief is found to have been a position taken in good faith and therefore to have an impact on any determination as to compliance with agency directives. Under all the circumstances, as revealed by the testimony presented at the hearing, it is determined that Respondent's failure to complete and to refinish the undersurface of the roof eaves at and around the clipped nail protrusions does not constitute a violation of the spirit and intent of the charged code provisions dealing with non- compliance with the Inspector's written directive.

CONCLUSIONS OF LAW

1. The evidence of record with respect to the unfinished and unpainted area below the roof eaves in the vicinity of clipped nail protrusions sufficiently supports a determination that Respondent has violated the workmanship provisions contained in A.R.S. §32-1154A (3); namely, Rule R4-9-108. No other violations by Respondent of any other sections of the statute were adequately proven hereunder.

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RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that Respondent's Class B license be actively and temporarily suspended until the Registrar receives proof that Respondent has accomplished appropriate corrective work consisting of the finishing and painting all areas under the roof eaves where nail protrusions have been clipped, as set forth in Finding of Fact Number 6.

It is further recommended that if Respondent accomplishes the above- described corrective work in a proper, workmanlike manner on or before this Order's effective date, then the entire Citation and Complaint in Case Number 97-2416 shall be closed.

Dated: November 19, 1997. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on ___________________

by: _____________________________ , To:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Hearing Department -----------------------

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