ALJDEC

97F-M1836-ROC · Registrar of Contractors · 1998-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 1998 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president, Thomas Brown. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant purchased new home construction from Respondent. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below. 2. Although there were numerous items of alleged construction deficiencies enumerated in the filed complaint, at the outset of the scheduled hearing, Complainant averred that the instant hearing would merely be limited to the one outstanding issue of painting of the interior and exterior, due to drywall and stucco repairs in the respective areas of the home. 3. Although drywall repairs were completed by Respondent, albeit belatedly, and Complainant is not completely satisfied with the outcome of said repairs, Complainant averred at the hearing that he accepts the repairs “as is” based on his deferral to the judgment of the assigned inspector for the Registrar of Contractors who recently inspected said repairs and indicated to Complainant that same were acceptable per minimum industry standards for drywall texturing. 4. Although Respondent was apparently ready, willing, and able to complete the painting remedial work after the drywall repairs were completed, due to a serious communication breakdown between the parties, the painting was not performed. Those items that contributed to the communication breakdown between the parties consisted of the following: a. The parties only communicated with one another by letter. b. Complainant failed to accept a number of certified mailings from Respondent c. Respondent refused to perform the paint remedial work unless and until Complainant signed a statement indicating that he accepted the drywall repair work. d. Complainant desired an upgrade in the interior paint and the parties could not get together on a method to assess the additional costs to Complainant and have Complainant accept such added costs. 5. Notwithstanding Respondent’s demand that Complainant place his acceptance of the drywall repairs in writing, it is held that Complainant’s acceptance statement at the hearing, under oath, is sufficient to allow Respondent to move forward with the painting. Regarding the issue of the upgraded paint material, it is determined that Complainant has no entitlement to have Respondent perform anything other than paint work utilizing the same paint grade that was originally used in the original painting of his home. 6. Although Respondent should have completed all necessary paint repairs and is fully responsible for the existing paint deficiencies in Complainant’s home, the facts and circumstances presented herein present strong mitigation for the failure to re-paint the interior and exterior of Complainant’s home. 7. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive and Respondent’s efforts to comply, all of the work in question was not completed within the time period specified and, as stated above, the required paint remedial work has not been accomplished. Thus, Respondent failed to substantially comply with the terms and conditions of the Agency directive. However, the facts and circumstances presented herein would militate against the imposition of a civil penalty against Respondent. 8. Evidence of record supports a finding that Respondent should tender the paint remedial work one final time in writing and via telephone to Complainant’s place of business and or/at Complainant’s home. If Respondent is willing to perform the paint remedial work using an upgraded paint, then Complainant shall have twenty-four (24) hours to pay the differential in cost to Respondent from the time the parties agree to the upgraded paint procedure. In the event Respondent has no desire to be involved in an upgraded painting procedure, then its only obligation is perform the normal painting procedure. Any denial of access by Complainant to allow such a painting procedure should be deemed to be tantamount to Respondent’s compliance with the Registrar’s Order. 9. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed numerous prior complaints that had gone into the hearing process and a number which resulted in disciplinary action against Respondent’s license. Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished all necessary painting remedial work on the inside and outside of Complainant’s home in accordance with the conditions and parameters set forth in Finding of Fact no. 8, above. Any unreasonable denial of access by Complainant to allow the paint work to move foreword in the manner selected by Respondent shall constitute Respondent’s compliance with this Order. It is further recommended that if Respondent accomplishes the above- described corrective work or is denied access for said purpose, on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on a period of 180 days’ disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Registrar’s Order or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above provided penalties, if any, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152 (D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided twenty-four (24) month period and only if no claims are then pending.

Done this day, May 15, 1998.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of May, 1998, to:

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

By _______________________________

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