ALJDEC

99F-T0767-ROC · Registrar of Contractors · 2000-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 12, 2000 at 8:30 a.m. APPEARANCES: The Complainant appeared through her attorney, Lisa Bleich. Both Respondents appeared through their attorney, Michael Green. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

These matters came on for consolidated hearing on January 12, 2000. The Complainant appeared through her attorney, Lisa Bleich, and both of the Respondents appeared through their attorney, Michael Green. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT

1. Respondent P. Smith and Company, Inc., is the holder of a Class C-08 License issued by the Registrar of Contractors. 2. Respondent Chirco Construction Co., Inc., is the holder of a Class B- License issued by the Registrar of Contractors 3. This is a residential matter where the Complainant entered into an agreement with P. Smith and Company, Inc., for the installation of new floor tile and carpeting in her residence. P. Smith and Company, Inc., then entered into a sub-agreement with Chirco Construction Co., Inc., for the installation of the floor tile. 4. Credible evidence, produced at hearing, established that Chirco Construction Co., Inc., then retained an unlicensed individual to actually install the floor tile in the Complainant’s residence. 5. The work of the unlicensed individual was unsatisfactory and the Respondents replaced the Complainant’s tile floor, repainted the Complainant’s kitchen cabinets, cleaned the Complainant’s duct work, and replaced the Complainant’s dishwasher. 6. Credible evidence, presented at hearing, established that Respondent P. Smith and Co., Inc., also offered to clean the Complainant’s walls. 7. The Complainant decided that the process was taking too much time and had the walls of her residence repainted at her own expense. The Complainant now seeks restitution for her costs of repainting the interior walls of her residence. 8. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection. All of the corrective action, including the painting of the interior, had occurred prior to the on-site inspection. The only determination that the assigned inspector was able to make was that all of the corrective action had been performed to within applicable industry standards.. 9. The Complainant then requested a formal hearing for her claim for reimbursement for the cost of repainting the interior of her residence. 10. There was no dispute that there was tile dust on the walls of the Complainant’s residence. However, the Respondents sharply dispute the necessity of repainting the interior walls asserting that the tile dust could have been cleaned from the walls. 11. Credible evidence established that the Respondents were not given an opportunity to have the tile dust on the walls examined and evaluated by the assigned Agency Inspector and were not given a reasonable opportunity to clean the tile dust from the interior walls prior to the repainting. 12. The credible evidence of record is insufficient to establish that the walls could not have been cleaned and therefore required repainting. 13. The dispute between the parties regarding the Complainant’s request for reimbursement for the cost of repainting the interior of her residence is found to constitute a good faith dispute which will necessarily involve a monetary adjudication and which should be resolved, if at all, in a civil court of competent jurisdiction. 14. Credible evidence, produced at hearing, established that Respondent Chirco Construction Co., Inc., either knew, or should have known, that it had wrongfully aided and abetted an unlicensed person to evade the licensing requirements of the State of Arizona in the initial tile floor installation. The actions of Chirco Construction Co.. Inc., are found to constitute a wrongful act. 15. There was no credible evidence that Respondent P. Smith and Company, Inc., either knew or should have know that Chirco Construction Inc., had retained an unlicensed person to attempt to install the first tile floor in the Complainant’s residence. 16. Notice is taken of both of the Respondents’ prior License records with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. Credible evidence established that the initial floor tile installation was unworkmanlike and unsatisfactory. However, the credible evidence of record established that Respondent P. Smith and Company, Inc., responded to the situation in a professional manner and properly caused the replacement of the first tile floor, the replacement of the Complainant’s dishwasher, the cleaning of the Complainant’s duct work, and the repainting of the Complainant’s kitchen cabinets. The credible evidence of record also supported a finding that the parties’ dispute regarding the Complainant’s request for reimbursement for the cost of repainting the interior of her residence is a good faith dispute which should be resolved, if at all, in a civil court. Consequently, the credible evidence of record is insufficient to support any finding that the said Respondent, P. Smith and Company, Inc., has violated the charged provisions of A.R.S. §32-1154(A). 2. The credible evidence of record established violations by Respondent Chirco Construction Co., Inc., of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), and (10)

RECOMMENDED ORDERS

1. In view of the foregoing, it is recommended that the Class B- License of Respondent Chirco Construction Co. Inc., be placed on probation for a period of thirty (30) days, commencing on the effective date of this Order, and that the said Respondent be formally admonished that as a Licensed contractor it is responsible for knowing, and complying with, the laws of the State of Arizona regarding aiding or abetting an unlicensed person to evade the licensing requirements of the State and that any repetition of this type of activity may result in the suspension or revocation of its license.

2. In view of the foregoing it is recommended that Citation No.T99-0748 against P. Smith and Company, Inc., be dismissed.

Done this day, January 26, 2000.

______________________________________ M. DOUGLAS Administrative Law Judge

Original transmitted by mail this ____ day of January, 2000, to:

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

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488