ALJDEC decisions subject to certification as final

06F-2462-ROC · Registrar of Contractors · 2006-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2006 APPEARANCES: The Complainants Nancy and Mark Borkowski appeared in their own behalf. Chris Manion, Qualifying Party, appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Respondent held a Class C-34 painting and wall covering license[1]. 2. In March, 2006, the parties entered a contract whereby the Respondent would perform certain demolition, remodeling, and painting at the Complainants’ home in Scottsdale, Arizona. The Complainants had also hired other contractors to perform work at their home. 3. The basic portions of the contract between the parties are: a. In the bathrooms, the work included the demolition of the shower and tub, cultured marble surrounds and a wall to a specified height in the master bathroom, and demolition of the tub and cultured marble in the hall bathroom, followed by finishing and retexturing drywall in the bathrooms. The contract also included removal of baseboards, doors and trim, drywall repairs as needed, mirror, medicine cabinet, towel bar, and toilet paper holder replacement. b. In the kitchen and family room, the Respondent was to “demo” the kitchen soffit, and move the soffit to 98” from the floor, “demo” pony walls, the bottom wall edge of drywall mantel, and then drywall and retexture. c. The Respondent was to do demolition, and then drywall and retexture in two closets. d. Respondent was to remove all flooring including tile, carpet, tack strip, and adhesive, and sweep and clean all floors. e. The Respondent was to power wash and paint the entire house and walls, seal stem wall with sealer, prep (fill) all exterior cracks and holes, repair stucco at outside shower, where new plumbing is installed and around new doors. Spray garage door and service door with latex enamel. f. Repair, caulk, retexture as needed, and paint interior. 4. The price term of the contract was $8,500.00. The Complainants paid the Respondent $7,500.00 including $1,000.00 for additional paint after deciding to change color after the project had started[2]. 5. The Complainants rented another residence while the work was being done at their home. The anticipated completion was May 1, 2006. The Complainants moved back to the home on May 25, 2006[3]. 6. Disputes between the parties concerned the pace, quality, and cost of the work. 7. The Complainants filed their Complaint with the Registrar of Contractors (ROC), on June 5, 2006. 8. ROC Inspector Geoff Galgan (Galgan) performed the initial jobsite inspection on June 20, 2006. 9. On June 22, 2006, Galgan issued a Corrective Work Order (CWO). According to the CWO, the Respondent’s license had been suspended on June 1, 2006. Galgan therefore required the Respondent to hire a properly licensed contractor to perform the corrective work. The CWO required correction of: a. Paint overspray on interior doors, trim, woodwork, range hood, switches, switch plates and flooring; b. Damaged finish on door at area that contractor attempted to remove overspray; c. Uneven, unsightly finish at window sills; d. Masking tape not properly removed; e. Unpainted areas around backsplashes and in corners; f. Missing paint at bull noses around doors; g. Unpainted areas at exterior doors; h. Unpainted areas at wall base; i. Unpainted areas around windows; j. Holes and gaps at electrical cover plates; k. Interior of garage not painted as per agreement; l. Garbage and debris left on premises; m. Touch up paint to be left with homeowner; n. Failure to pressure wash prior to painting[4]. 10. Galgan performed a pre-hearing inspection on December 14, 2006. He testified no work was done by the Respondent is response to the CWO. 11. The Respondent testified he had pressure washed the exterior of the home prior to painting. The Respondent acknowledged he hired a someone to do drywall work[5] but that person left the job. The Respondent hired another person to do the drywall but the Complainant had to pay that person directly[6]. The Respondent testified some of the overspray (the overspray on the tile) was the result of the Complainant hiring the Respondent’s employee, Moses Perez (Perez), to paint independently at the home. The Complainants acknowledged they paid Perez directly but only because the Respondent was not paying Perez. 12. The Respondent testified he refused to do any more work when the Complainants refused to pay the additional $700.00 labor cost to repaint a portion of the home. According to the Respondent, he went to the Complainants’ home to do corrective work on July 1, 2006, but was denied entry[7]. Conclusions of Law The Citation and Complaint alleges violations of A.R.S §32-1154(A)(1), abandonment; (A)(3)/A.A.C. R4-9-108 workmanship standards; (A)(7), a wrongful act with substantial injury; (A)(14), contracting for work for which a license is required with a person not licensed in that classification; (A)(17), knowingly contracting beyond the scope of the license; and (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof by a preponderance of the evidence under Culpepper v. State, 187 Ariz. 431 (1996 App.)[8] and A.A.C. R2-19-119. 2. A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). 3. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 4. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 5. The evidence was insufficient to establish a violation of (A)(1). The statute requires that the abandonment must be without legal excuse. According to the Respondent, he stopped working on the project because the Complainants did not want to pay an additional $700.00 for labor for repainting portions of the home which had already been painted. 6. The substance of the CWO, and the testimony of the Complainants and Galgan, were not refuted. The evidence in its entirety establishes a violation(A)(3)/A.A.C. R4-9-108. 7. There was insufficient evidence[9] that the persons doing drywall work were not licensed and no violation of (A)(14) has been proven. 8. The Respondent does not possess a Class C-10 drywall license and his contracting to do drywall and texturing is a violation of (A)(17). 9. The Respondent did not hire a properly licensed contractor to perform corrective work as required buy the CWO. This is a violation of (A)(23). 10. The Respondent’s contracting beyond the scope of the license (drywall), the Respondent’s poor workmanship, the delays attributable to the Respondent, and the failure to have corrective work done by a properly licensed contractor, constitute a violation of (A)(7).[10] 11. Although the Respondent’s license is revoked, the following decision is appropriate under A.R.S. §32-1154(C) which provides for continuing jurisdiction by the Registrar of Contractors over licenses that have been previously revoked. Recommended Order It is recommended commencing the effective date[11] of the Order issued in this matter, the Respondent’s Class C-34 license shall be revoked.

Done this day, December 29, 2006

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] The Respondent’s license was revoked effective September 6, 2006 [2] According to the Respondent this would increase the labor cost by $700.00 [3] According to the Complainants they had to pay an additional $1,500.00 in housing costs due to the delay. [4] There is insufficient evidence to conclude the home was not pressure washed. [5] According to the Complainants, the person identified as ”Jose”, was not licensed by the ROC. [6] According to the Complainants they paid an additional $1,100.00 to a James Millan for the drywall work which had been contracted with the Respondent. [7] The Complainants were aware of the suspended status of the Respondent’s license and did not want him doing the work. In addition the CWO required the Respondent to hire a properly licensed contractor to do the work. [8] The Culpepper case applies to an administrative agency. However, since any violation established in this case may result in a sanction by the agency, the ruling in the case applies equally to the Complainant. [9] It consisted of a passing assertion. [10] The substantial injury includes the continuing need for and potential cost and effort for corrective work and a portion of the extra housing cost due to delays caused by the Respondent.. [11] Forty (40) days from the date of the Order or from the date of certification by the Director of the Office of Administrative Hearings if certified so certified.

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