ALJDEC

99F-1706-ROC · Registrar of Contractors · 1999-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 28, 1999 APPEARANCES: Complainant was represented by its attorney, Craig Collins. Although Respondent failed to appear, his daughter, Ruth Mitchell, appeared at the hearing and presented testimony. 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. Prior to commencement of the hearing in this matter, Respondent’s daughter advised this Tribunal that her father was ill and therefore, unable to appear for the hearing. She further indicated that the business had been closed down due to her father’s illness and that she had a power of attorney to represent her father’s legal affairs. Since she was not a licensed attorney and not listed on the license named in the instant Citation, she was necessarily prohibited from acting as the licensee’s attorney at the instant hearing. Nevertheless, she was allowed to present her own testimony relative to this matter. 2. Pursuant to written contract, Complainant retained Respondent for the purpose of re-painting the exterior of numerous condominiums. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below. 3. The evidence presented established that the following constitute workmanship and/or material deficiencies in the work performed by Respondent: a. Respondent failed to utilize the grade of paint specified in the applicable contract. b. The exterior of the condominiums are covered with a type of hardboard siding. There are numerous areas wherein there is a definite visible “wax bleed-through” from the wood coming through the paint applied by Respondent. This was shown to be evidence of either a failure to apply an appropriate primer or inadequate primer application. c. Areas of Respondent’s paint work are peeling, indicating a lack of proper surface preparation. d. The mil thickness of the paint applied by Respondent was not in accordance with the contract requirements. 4. 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, Respondent failed to comply with same. 5. K.W. Lundsford (“Lundsford”) appeared at the instant hearing and testified on behalf of Complainant regarding his inspection of Respondent’s painting work. Lundsford was shown to be an expert in the area of painting and it was his opinion that the only manner to effectively correct the problems in the paint work described in the foregoing findings was to re- paint the affected areas. It should be noted in this regard that a representative of Complainant testified at the instant hearing regarding his opinion that there are certain areas of the work performed by Respondent that do not require re-painting such as the doors, wood trim, and the iron-work. 6. Notice is hereby taken of official Registrar of Contractor’s public records, which reveal that Respondent’s contracting license has been canceled since March 23, 1999. Such cancellation does not preclude this tribunal from conducting these administrative proceedings nor from issuing disciplinary orders. Moreover, Respondent’s existing canceled license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of a canceled license.

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 that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent causes a properly licensed contractor to accomplish appropriate and effective re-painting of all areas evidencing the deficiencies described in Findings of Fact 3 (a) through 3 (d), above, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-34 license shall be placed on active suspension for a period of 7 days followed immediately by a period of . . . . . . . . . . . . disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter.

Done this day, June 29, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of June, 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