ALJDEC

99F-F0238-ROC · Registrar of Contractors · 1999-09-22

\]IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 1999 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its owner and qualifying party, Jerry Desmond. 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. Respondent was the subcontractor that accomplished the exterior painting on Complainants’ new home. Respondent was retained by the general contractor on the project. Although Complainants did not contract directly with Respondent, as the third party beneficiaries of his work they have standing to file the instant complaint against Respondent.

2. It was undisputed that Complainants have experienced significant peeling in the paint applied to the exterior of the home in numerous areas of said home. It is important to note that the general contractor that built the home for Complainants has previously been revoked by the Registrar of Contractors. Although Complainants have received the maximum payout ($20,000.00) from the Contractors’ Recovery Fund, in a prior claim against the general contractor, it was shown that said payout from the Contractors’ Recovery Fund was merely to assist Complainants in paying off liens that had been placed against their home by subcontractors who had not been paid by the general contractor.

3. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing him to accomplish specified painting remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent disagreed with the findings of the Agency inspector and requested that the matter be brought to an administrative hearing.

4. The assigned inspector appeared at the instant hearing and testified regarding the aforementioned jobsite inspection. The salient portions of his testimony were as follows:

a. All parties were present at the jobsite and the peeling of the paint was observed on various locations around the home. b. Respondent advised the inspector that it was his position that the peeling paint was attributable to roof deficiencies, design flaws, and/or stucco issues. The inspector did not observe any problems with the stucco material. c. The inspector indicated that although the design of the home and the roof may have contributed to the ultimate peeling of the paint, he determined that by agreeing to apply paint to the home, Respondent accepted all surfaces and conditions as being adequate to support a workmanlike result. He further opined that in the event Respondent was concerned about the design of the home or the construction of the roof, it would have been incumbent upon him to bring these matters to the attention of the general contractor and seek the execution of an appropriate and effective written disclaimer of liability for any paint failure.

5. Respondent testified at the hearing regarding his opinion that design flaws and/or deficiencies in the roof installation caused his paint work to fail. He testified that there were specified gaps around the chimney chase which could have caused water to get behind the substrate (stucco), resulting in deterioration of the substrate that ultimately caused the peeling paint observed in the chimney chase area. However, It is important to note that Respondent was unable to testify that the gaps around the chimney chase were not present and readily visible at the time he performed his original paint work.

6. Respondent presented a document from a chemist, employed by his paint supplier, who examined a sample of one of the paint chips taken from Complainants’ home. Although said document was offered in an attempt to show that the stucco had deteriorated, said document was given very little weight since it was not from an independent lab and there was inadequate information regarding the method of testing and/or the taking of multiple random samples.

7. Although Respondent appears in good faith to believe that the roofing deficiencies and/or design flaws in the home caused, or at least contributed to, the failure of his paint work, he was unable to adequately explain why, if water was coming from the roof and getting behind the stucco, certain areas of specified walls were peeling while other painted areas, above the peeled areas but still below the roof line, were adhering normally. Moreover, there were other areas of the home showing peeling paint that Respondent was unable to demonstrate were in any way related to the design of the home or to specified claimed deficiencies in the roof installation.

8. Respondent’s paint work, as impliedly warranted by Respondent, has failed, thereby reflecting an unworkmanlike result. The totality of the evidence of record was found to be inadequate and insufficient to support any finding that Respondent should not properly be held liable for said failure of his paint work. Therefore, Respondent’s painting of Complainants’ home is determined to be indicative of unacceptable workmanship and, as such, a wrongful act within the meaning of the charged sections of the State’s Contracting laws.

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 that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

10. In regard to Respondent’s failure to comply with the above- described Agency directive, it is held that although said failure to comply with same constitutes a violation of the applicable charged section of the State’s Contracting laws, all of the salient facts and circumstances of this case including, but not limited to, Respondent’s apparent good faith, albeit erroneous, belief that others should be held responsible for the failure of his paint work, militates against the imposition of any civil penalty.

CONCLUSIONS OF LAW

1. It is acknowledged that there is a principle in construction, and one generally applied by the Registrar of Contractors under appropriate circumstances, that a contractor, performing work over a surface and conditions created by others, accepts the surface and conditions at the time of the subsequent application, based on the opportunity to inspect for any visible flaws or defects before performing such subsequent work. 2. The peeling of the paint applied by Respondent is found under all of the salient facts and circumstances of this case to constitute violations of 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 C-34 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the peeling paint present on the exterior of Complainants’ home. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and, in that event, this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day of , 1999

______________________________________ Mark A. Silver 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