ALJDEC decisions subject to certification as final

05F-F0246-ROC-res · Registrar of Contractors · 2007-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 31, 2007 APPEARANCES: Complainant Marc Williams appeared on his own behalf. Scott Miskiel, Esq. represented Respondent John Gregory Baskin, doing business as Foam One. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ 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. The hearing of this matter originally convened on November 14, 2005, in order to address whether Respondent John Gregory Baskin, doing business as Foam One (“Foam One”), was subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A)(3) and/or (A)(7) as charged by the Registrar of Contractors (“ROC”) in a July 19, 2005 Citation and Complaint. Foam One did not appear for the hearing. 2. On December 1, 2005, an Administrative Law Judge Decision was issued based upon the evidence presented at hearing, finding Foam One in violation of the charged statutory provisions, and recommending that Foam One’s Class C-42R license be suspended until Foam One paid restitution to Complainant Marc Williams, in the amount of $7,000.00. The Order further provided for a period of disciplinary probation. On December 30, 2005, the ROC adopted the Decision with minor modifications. 3. On January 30, 2006, Foam One timely filed a request for rehearing. On February 13, 2006, the Administrative Law Judge issued an Order Recommending Denial of Rehearing based upon the following: Foam One failed to appear for hearing and further failed to indicate any cause for its failure to appear. In its request for rehearing, Foam One did not address in any way such failure to appear. Yet, Foam One now attempts to argue that the amount of restitution it has been ordered to pay is excessive, despite the fact that it was not present for the presentation of the evidence that justified such an order. Foam One also argues that it was “not given an opportunity to mitigate his damages.” As previously noted, Foam One failed to appear at hearing and thus failed to present any evidence regarding such assertion. The fact that Foam One is dissatisfied with the result of the hearing and wishes another opportunity to present its case is not a valid ground for rehearing.

4. On February 17, 2006, Foam One filed an Appeal/Review of Final Administrative Decision in Yavapai County Superior Court. 5. On March 17, 2006, the ROC rejected the Administrative Law Judge’s Order Recommending Denial of Rehearing based upon the fact that it no longer had jurisdiction over the matter due to the pending appeal in superior court. 6. On August 30, 2006, the Honorable Ralph M. Hess issued a Minute Entry setting forth the following in pertinent part: Pursuant to A.R.S. § 12-910(a), the Court finds [Foam One] has identified new and additional evidence, specifically witnesses that will provide testimony of their knowledge that Mr. Williams had informed them before [Foam One] commenced work that Mr. Williams had planned to paint his house after [Foam One] had finished work on the house. Pursuant to A.R.S. § 12-910(b), that the relevant evidence not offered shall be admitted. The Court finds no evidence that [Foam One] withheld this new and additional evidence for purposes of delay, harassment, or other improper purpose and finds [Mr. Williams] has not shown he will be substantially prejudiced by allowing the new and additional evidence to be considered. Therefore, the Court concludes in apply (sic) A.R.S. §§ 12-910(a) and (b), the Court is required to have the new or additional evidence considered. Pursuant to A.R.S. § 12-911(a)7, the Court has considered whether this matter should be considered by this Court or remanded to the Registrar of Contractors to consider the new and additional evidence. Because the nature of the evidence is credibility, the Court determines that is an issue to be determined by the Administrative Law Judge. Therefore, the Court remands this to the Registrar of Contractors to consider the additional evidence limited in scope to those witnesses that will provide testimony of their knowledge that Mr. Williams had informed them before [Foam One] commenced work that Mr. Williams had planned to paint his house after [Foam One] had finished work on the house.

7. On January 8, 2007, the ROC issued an Order as follows: Pursuant to Judge Hess’ August 30, 2006 Minute Entry issued in Yavapai Superior Court Case No. CV820060023, IT IS ORDERED that Case No. F05- 0246 shall be scheduled for a limited evidentiary hearing . . . . This hearing shall be limited in scope so as to only provide [Foam One] the opportunity to present evidence and testimony as to whether [Mr. Williams] informed [Foam One] that [Mr. Williams], himself, was to undertake the responsibility to paint the residence in question. [Mr. Williams] shall be given an opportunity to present rebuttal evidence and testimony at the hearing limited in scope to the painting issues.

8. The rehearing ordered by the ROC convened on July 31, 2007. Mr. Williams appeared on his own behalf. Scott Miskiel, Esq. represented Foam One. At the outset of the rehearing and during the course of the rehearing, the parties were advised that the hearing was limited in scope to Judge Hess’ Orders contained in the ROC's January 8, 2007 Order, and that the other issues decided in the original hearing would not be re- litigated. 9. Foam One called Mr. Williams as a witness. Mr. Williams credibly testified that he did not discuss painting the house before Foam One completed its work on March 15, 2005, because the reason the house needed to be re-painted was due to the overspray left by Foam One. Mr. Williams credibly testified that the home had been repainted on August 11, 2004, just prior to him purchasing the home, and eight months prior to Foam One’s application of the overspray, and that he had a one year warranty on the painting work. See Exhibit C-65. When questioned, Mr. Williams credibly explained that the reason the painting proposal does not mention that it was to cover overspray was because he did not draft the proposal; the painting contractor did so. However, Mr. Williams explained to the painting subcontractor that it was his intent to cover the overspray left behind by Foam One. Mr. Williams testified that such intent was evident in the proposal as the use of elastomeric paint was necessary to cover the overspray, as the overspray was elastomeric sealant and “normal” house paint would have required so many coats, it would have been cost prohibitive to use any other type of product. 10. Mr. Baskin testified that Mr. Williams was not concerned with the aesthetic appearance of Foam One’s coating the cracks in the stucco over the parapets as Mr. Williams told him not to worry, they will not be seen after the house is painted. Mr. Williams credibly testified that he did advise Foam One that he would personally paint the interior of the parapet wall, but not the exterior of the home. 11. Foam One did not call any other witnesses to testify at hearing. CONCLUSION OF LAW 1. Based on the credible evidence of record, Foam One failed to establish, on this limited rehearing, any basis for a departure from the imposition of the conditional disciplinary sanction against Foam One’s license or any reason why the prior Order of the Registrar entered in this matter, should be modified. Judge Hess remanded this matter to the ROC to “consider the additional evidence limited in scope to those witnesses that will provide testimony of their knowledge that Mr. Williams had informed them before [Foam One] commenced work that Mr. Williams had planned to paint his house after [Foam One] had finished work on the house. Foam One failed to present probative, substantial and credible evidence establishing that Mr. Williams had informed Foam One before it commenced its work at Mr. Williams’ home, that Mr. Williams had planned to paint his house after Foam One had finished work on the house. RECOMMENDED ORDER In view of the foregoing, it is recommended on limited rehearing, that the December 30, 2005 Order entered in this matter be reissued, thereby providing for Foam One’s Class C-42R license suspension on the effective date of the Order entered in this matter, until the ROC receives proof that Foam One has paid restitution to Mr. Williams in the amount of $7,000.00. It is further recommended that if Foam One pays restitution to Mr. Williams in the amount of $7,000.00 on or before the Order’s effective date, then no license suspension shall be imposed but instead Foam One’s Class C-42R license shall be placed on disciplinary probation for a period of one hundred twenty days (120) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification. Done this day, August 15, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of August, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 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