ALJDEC

99F-M1351-ROC · Registrar of Contractors · 1999-11-04

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 1999.

APPEARANCES: Complainant, Krishna M. Pinnamaneni, appeared in his own behalf.

Respondent, Lucero Painting, Inc., was represented by its attorney, Jay R. Graif, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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. Shortly after the formal opening of the scheduled hearing at 9:00 a.m., Respondent informed the tribunal that he would be unable to participate in the hearing after 1:00 p.m. for the reason that he had to depart for the airport in time for a plane flight. No prior notice had been given nor was any prior request or motion filed seeking

a partial abbreviated hearing or seeking a continuance if the respective presentations could not be concluded before the time Complainant was to leave the hearing site. Respondent stated an objection to any continuance request at this time.

2. The Administrative Law Judge advised Complainant that his requests were not timely and that the hearing would proceed to its conclusion without rushing the presentations by either party. Complainant remained free to and did absent himself from the balance of the hearing after having remained actively involved in presenting testimony and evidence over a four- hour duration, no lunch break being taken until after Complainant had departed. No adverse inference or impact was generated as a result of Complainant’s voluntary absence from the balance of the hearing, which lasted slightly less than two more hours.

3. Following extensive water and hail damage to Complainant’s residential structure, Complainant filed an insurance claim under his homeowner’s policy. At the suggestion of the general remodeling contractor in charge of the overall repair project, Complainant contacted Respondent for the purpose of securing an advance bid, and thereafter entered into a direct contract for the ultimate performance of the painting portion of the jobsite damage repair work.

4. The testimony was largely conflicting with respect to the surrounding circumstances as well as the contents of conversations between the parties leading to several writings of a contractual nature. Little or no valid basis is found to exist for the disbelief of either party’s version. It must, therefor, be held that Complainant did not sustain his requisite burden of proving contractual entitlement to a greater scope of work than that specifically enumerated and identified in what purported to be fully

categorized proposals. At best, it appeared that there was no mutual meeting of the minds with respect to additional areas, if any, to be included within the contractually required painting work.

5. The specified monetary consideration payable by Complainant to Respondent under all forms of the written agreements was a total sum of $21,557.92, of which Complainant was shown to have paid an agreed advance deposit of $10,778.00 plus a further payment of $4,500.00, totaling payments of $15,278.00 and leaving an unpaid contract price balance of $6,279.92.

6. It was not effectively disputed that several aspects of the painting work by Respondent, if left uncorrected, were substandard and would reflect unfavorably upon Respondent’s workmanship. These deficient items became the subjects of a written directive from the Registrar’s assigned Inspector following his jobsite visit. Also included in such directive was a requirement to rectify several items not proven at the instant hearing to be within Respondent’s scope of work and consequently not constituting obligations or responsibilities of Respondent.

7. Although Respondent had expressed a willingness to perform remedial measures on numerous items of complaint that had been expressly set forth in the Inspector’s directive, no actual work was accomplished due in large part to the parties’ ongoing and growing inability to productively communicate with each other. The testimonial and documentary evidence tended to indicate that Respondent’s access to the premises was, at least to some significant extent, restricted by Complainant, although not always without some degree of justification. No tender of work was made with respect to those items believed to fall outside the scope of the work nor to several items admittedly within the scope but believed by Respondent not to be deficient.

8. It is not a proper function of either the Registrar of Contractors or the Office of Administrative Hearings to arrange for, to schedule or to superintend the performance of corrective work. However, under all the circumstances, one and only one further opportunity for Respondent to perform and for Complainant to accept another tender of remedial work should be afforded. The below Findings of Fact set forth the areas or items of work that were sufficiently demonstrated to be substandard or that were otherwise determined to be items which Respondent must undertake and properly accomplish. Numbers in parenthesis mentioned in or after such Findings correspond with numbers appearing in the Inspector’s written directive, with the initial Roman numeral designating either an exterior or interior area, respectively.

9. A horizontal painted stripe was omitted from the surface of the painted tennis court masonry block wall and must be provided by Respondent. (I-1). However, no requirement was adequately proven for any painting of the metal fencing materials above such block wall.

10. Portions of the storage room door were shown to have been in need of some relatively minor touch-up work by Respondent, but no obligation is found to exist for Respondent to have painted the inside of the storage room. Additionally, the evidence revealed that the varnish coatings applied to several interior doors require touch-up efforts by Respondent. (I-2 and II-6).

11. Respondent is found to be responsible for patching and re- painting all significant cracks in the exterior stucco that are in excess of 1/16” in size. (I-3).

12. Respondent is required to remove oversprayed paint material deposited on the skylights and on several (approximately 12) bricks around or over one or two

windows, as well as from several tile trim pieces in the bathrooms and from the wood in the sauna and tub area. (I-4, I-5, II-5 and II-13).

13. Several small areas on the garage ceiling must be re-textured and re-painted by Respondent. (I-7).

14. Appropriate caulking around back-splashes at countertops, windows and doors, where necessary, must be accomplished by Respondent. (II-1).

15. Built-in bookshelves in the living room, a wall area under bookshelves in the bedroom of one of Complainant’s children and the air- conditioning vents must all be appropriately painted by Respondent. Additionally, a nail located above the window in such bedroom must be removed and the immediate area properly repaired and re-painted. (II-3, II- 9, II-11 and II-12).

16. The evidence presented at the hearing failed to sufficiently prove that present condition of the sliding door tracks and hardware, shown to have been in a deteriorated condition prior to Respondent’s jobsite work, was worsened or was otherwise damaged by any act or omission of Respondent, and no corrective action is found to be required thereon. (II- 2).

17. No obligation is found to exist for Respondent to paint all sidewalks, all pool decking nor either the porch floors or ceilings. Moreover, the results of the color matching efforts with respect to those sections of the pool decking that had been re-painted by Respondent were not shown to have been objectively unacceptable or to have exceeded allowable tolerances for such color matching according to prevailing industry standards. (I-6 and II-8).

18. All other individual items of complaint not specifically mentioned above are determined either to be items not adequately proven at the hearing to have contained workmanship deficiencies or to have constituted deviations from the contractual responsibilities of Respondent under its agreement with Complainant.

19. Notwithstanding the inclusion in the Inspector’s directive of some items of complaint shown still to be in need of remedial action, the overall course of Respondent’s conduct under all the circumstances is determined not to have violated the spirit and intent of the charged code sections relating to non-compliance with written agency directives. Nor was it adequately proven that Respondent had committed any wrongful act to the substantial detriment of Complainant.

CONCLUSIONS OF LAW

1. The evidence of record sufficiently established that Respondent was in violation of the provisions of A.R.S. §32-1154(A)(3); namely, Rule R4-9-108. However, no violations by Respondent of A.R.S. §32-1154(A) (7) or (23) were adequately proven hereunder.

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 C-34 license be suspended until the Registrar receives proof that Respondent has accomplished appropriate corrective work on the items described in Findings of Fact Numbered 9 through 15, inclusive, as set forth above.

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, or if Respondent is unable to accomplish such remedial work because of Complainant’s unwillingness to accept the same or his failure or refusal to grant reasonable and timely access to the premises, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number M99-1351 shall be closed.

Dated: November 12, 1999.

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: Joyce Armijo -----------------------

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