ALJDEC

99F-1478-ROC · Registrar of Contractors · 1999-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 1999 at 1:30 p.m. APPEARANCES: Bernard Welle, Complainant, appeared on his own behalf. Paul Gardner, Respondent’s qualifying party, appeared on its behalf. Robert Dragoon, Registrar of Contractors Inspector, appeared as a witness. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ The issue presented at hearing was whether Respondent violated ARS §32-1154(A)(23) for failure to take appropriate action to remedy rusting of Complainant’s pool fence. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Director of the Registrar of Contractors.

FINDINGS OF FACT 1. The Registrar of Contractors issued License No. 104123, Class B, to Respondent , a corporation. 2. In April of 1998, Complainant and Respondent made a verbal agreement that Respondent would paint Complainant’s newly constructed wrought iron fence. Respondent had initially been contacted by the contractor who built the fence and was made aware that some rust had begun. When he saw the fence, Mr. Gardner noticed that the wrought iron was too close to the stucco base in some areas. He also noted some surface rust. He did not notice, nor did he have any reason to know, that the welding was not complete and still had “holes” or unwelded areas that left spaces between the pieces of wrought iron. 3. Mr. Gardner did not get a waiver of his warranty on his work. However, he cleaned and scraped the surface rust, then primed the entire fence, even over areas which had been represented as already primed, and painted the fence, taking care to try to spray as well as possible under the areas where the stucco was too close to the fence. 4. In August 1998, Complainant called Mr. Gardner complaining that the fence was rusting. Mr. Gardner looked at the fence and saw that the welding was not done properly. He did some touch-ups on the paint and recommended that Complainant have the welding fixed. He returned again for a few more touch-ups but refused to do more until the welding was fixed. He was also notified that there were exposed areas of fence where the stucco was too close to the fence. Mr. Gardner offered to touch up the paint there as well as soon as the stucco was fixed. 5. On or about November 10, 1998, Complainant filed a complaint against Respondent with the Registrar of Contractors. On December 9, 1998, Inspector Robert Dragoon conducted an initial inspection of the site. He noted rust on the fence and concluded that minimum workmanship standards had not been met in the painting of the fence. He issued a Corrective Work Order on December 11, 1998 citing a potential violation of ARS §32-1154(A)(23), failure to take appropriate remedial action and ordering Respondent to repair the paint job. When he received no response from the home owner, he closed the case as “Confirmed, no response”. 6. On February 3, 1999, the matter was reopened due to a request for hearing. In a pre-hearing inspection on July 13, 1999, the inspector found that the fence still had rust on it. He testified at hearing that he had concluded that the paint did not look good with the rust on it and therefore it did not meet minimum workmanship standards. Under cross- examination, Mr. Dragoon admitted that there were no minimum workmanship standards for welding on pool fences and did not know how a painter would have known if a welding job was not done properly. 5. At hearing, Mr. Gardner offered pictures to show how the welding left gaps between the pieces of wrought iron. (Exhibit A.) Due to the wrought iron rusting on the inside, there was rust dripping down the outside of the fence. The pictures showed specifically that the paint was still in good condition under the rust and that the rust was coming from inside the fence, not outside it. He pointed out that the paint would have bubbled or peeled if it was rusting underneath, yet the pictures showed a smooth surface on the paint. Mr. Gardner stated at hearing that he was still willing to touch up the fence wherever needed, and indeed appeared eager to do so, but only after the fence was fixed as it would be a waste of time to do so until then. 6. Complainant agreed with Mr. Gardner that the paint had not actually failed. He believed that the painting job itself actually met workmanship standards and regretting bringing the Complaint against Respondent. However, he testified that the Registrar of Contractors had not accepted his Complaint against the fencing contractor stating that the last person to touch the fence was the party held responsible. He offered the Complaint, which was actually a Recovery Fund Claim, as Exhibit 3. 7. Complainant argued that he does not believe the painter should be responsible but that he thought it was unfair if no one was held responsible for his fence. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Director of the Registrar of Contractors pursuant to ARS §§32-1156 and 41-1064. 2. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg at al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 3. Pursuant to ARS §32-1154(A)(23), failure to take appropriate remedial action is prohibited. It may be grounds for suspension or revocation of the contractor’s license, imposition of a civil penalty or payment from the contractor’s recovery fund. ARS §32-1154(B),(D) and (E). 4. The workmanship standard referred to in this matter states, “Exterior latex or enamel paint should not fail within two years.” Minimum Workmanship Standards for Licensed Contractors, October 1998, page 24. 5. It is acknowledged that there is a principle in the industry which is generally recognized and applied by the Registrar of Contractors under appropriate circumstances that a contractor performing work over a surface prepared by another contractor accepts the surface at the time of the subsequent application, based on the opportunity to inspect for any visible flaws or defects before performing such subsequent work. However, such principle does not impose strict liability on the subsequent contractor if the subsurface should later fail or become defective for reasons that were not visible or readily apparent at the time of the subsequent installation over the subsurface. 6. Regarding the rust leaking from the welding, there is no evidence in this case which supports a finding that the Respondent knew or should have known that the welding on the Complainant’s fence was substandard. Further, it has not been established by the weight of the evidence that the paint itself has failed. Rather, an outside substance is dripping onto the paint. While the effect is that the paint does not look good, the same could be said if the paint were simply covered with mud. The dripping rust itself does not establish that the paint has failed. 7. It is true that the welding is a surface upon which the paint was laid. Still, the welding itself is not affecting the paint. It is allowing rust from behind the surface to drip out. Even with strict application of the principle of accepting the surface, this case does not quite fit since the rust is coming from somewhere other than the surface. 8. The principle of accepting the surface is more easily applied to the problems created where Respondent could not reach to cover the fence. Respondent acknowledged that he was aware of the difficulties in reaching under the fence in those areas where the stucco was too close. While he did make special efforts to spray paint under the fence to fill in, he did not get a written waiver of his warranty for a known defect in the surface. The fence is rusting where the paint did not cover. Nevertheless, Respondent remained willing to correct the problem as soon as the fence was fixed. It is undisputed that he was unable to do so because the fence has not been repaired (though this may be due in part to Complainant’s difficulty in filing a Complaint). 9. Since Respondent was willing to touch up the area but was prevented from doing so because the fence has not been fixed (for over a year), and because he has demonstrated ongoing good faith, it would be inappropriate to suspend or revoke his license pending further remedial action. Such disciplinary action could taint Respondent’s reputation for an unpredictable period of time while he and the Complainant wait for the fence to be properly repaired so that the work may be done. In the meantime, the rust will cause further damage, all of which is out of the control of Respondent. RECOMMENDATION Based upon the foregoing the undersigned Administrative Law Judge recommends to the Director of the Registrar of Contractors that this complaint be dismissed. Further, it is recommended that the Registrar of Contractors allow Complainant to file a Complaint against the fencing contractor to repair the areas where the stucco is too close to the wrought iron and to properly complete the welding. . Done this day, July 22, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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