ALJDEC

99F-T0308-ROC · Registrar of Contractors · 1999-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|JOHN MADDUX, |§| | | |§|CASE NO.: T99-0308 | |Complainant, |§| | | |§|DOCKET NO.: 99F-T0308-ROC | |-v- |§| | | |§| | |License No. 121596, Class B- of |§|RECOMMENDED | |A C R All Care Restoration of |§|DECISION AND ORDER | |Tucson, L.L.C. d.b.a. HOME |§| | |EMERGENCY RESTORATION, L.L.C., |§| | | |§| | |Respondent. |§| | | |§| |

HEARING: April 15, 1999, at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its owner, manager, and authorized representative, Deborah DuSold. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on April 15, 1999. The Complainant appeared on his own behalf and the Respondent appeared through its owner, manager and authorized representative, Deborah DuSold. 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. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. The Respondent’s Class B- License is delinquent and suspended.

2. This is a residential matter where the Respondent performed fire restoration work on the Complainant’s residence. As a part of the fire restoration work the Respondent rebuilt a portion of the Complainant’s rear redwood decking.

3. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work despite repeated requests that it do so. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence.

5. There was no dispute that the Respondent performed some corrective action at the residence. However, the parties were in sharp dispute as to whether the Respondent had properly complied with the terms and condition of the corrective work order.

6. Credible evidence, presented at hearing, established that the Respondent removed the top portion, identified as the “cream”, from the Complainant’s sidewalk during its efforts to remove stain over-spray from the sidewalk. The aggregate in the concrete sidewalk is now improperly exposed. The Respondent shall cause the sidewalk to be properly repaired or replaced.

7. The Respondent’s actions in damaging the Complainant’s plants during the redwood stain application and in damaging the concrete sidewalk during the removal of the stain over-spray are found to constitute wrongful acts.

8. Credible evidence established that the stain over-spray damaged the Complainant’s plants around the redwood deck and concrete sidewalk. The Respondent shall either cause the damaged plants to be replaced or, as restitution, reimburse the Complainant for the cost of the plants in the sum of $86.37.

9. The most heated dispute between the parties concerns the redwood stain that was applied to the new redwood decking. Credible evidence established that the Respondent’s written proposal and the parties’ written agreement specifies that the redwood decking was to be sanded and stained.

10. The application of stain rather than a clear coating is found to comply with the parties’ written agreement.

11. The undisputed fact that there was stain over-spray on the concrete sidewalk, the plants, and the bricks of the residence establishes that the stain was not applied in a workmanlike manner.

12. The tint or color of the redwood stain that was actually applied to the redwood decking was shown to have an unacceptable orange hue.

13. The Respondent shall properly strip the orange hued stain from the redwood deck and properly re-stain the redwood deck in accordance with the manufacturer’s recommendations and applicable industry standards.

14. The stain removal from the bricks of the residence is found to be within applicable industry standards.

15. The contractual relationship between the Respondent and the Complainant’s insurance company is found to be beyond the scope of the hearing in this matter.

16. The parties have a poor personal relationship and have difficulty in scheduling job-site work. The Respondent shall give the Complainant at least 72 hours notice of the date(s) selected to perform the directed corrective action. The Complainant is admonished that any unreasonable denial of access may be treated as the substantial equivalence of compliance.

17. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class B- License shall be revoked unless the Registrar of Contractors receives proof that the Respondent has properly caused the proper repair or replacement of the Complainant’s concrete sidewalk, the proper stripping and re-staining of the redwood deck, and that the Respondent has either properly replaced the damaged plants or, as restitution, properly reimbursed the Complainant for the cost of the plants in the total sum of $86.37.

It is further recommended that if the Respondent properly accomplishes the above described corrective actions, on or before the effective date of this Order, then the above provided License revocation shall not take place and Citation No. T99-0308 shall be closed.

Dated this 4th day of May, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of May, 1999 to:

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

Transmitted by:

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