ALJDEC decisions subject to certification as final

07F-1180-ROC · Registrar of Contractors · 2007-07-31

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 31, 2007 APPEARANCES: Complainant : Nancy Novick appearepro se. Respondent : Kerry Aymami, Qualifying Party, represented Kerry S Painting, Inc. In addition to Mr. Aymami, Bob Davies, Registrar of Contractors Inspector, and Eric Newman, Sales Rep, ICI Paints, Inc., testified. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ A Hearing was convened to determine whether Respondent Kerry S Painting, Inc. violated state law as has been alleged by Complainant Nancy Novick and as cited by the Arizona Registrar of Contractors (hereinafter also, “the ROC”). Evidence and testimony were presented. Respondent Kerry S Painting, Inc. holds a Class B-03 (General Remodeling and repair) license issued by the Registrar of Contractors. Complainant alleges that Respondent painted her home and has not fulfilled workmanship and warranty obligations. Based upon an examination of the entire record,[1] the following Findings of Fact are made, Conclusions of Law rendered, and DECISION AND RECOMMENDED ORDER issued: FINDINGS OF FACT 1. Respondent’s license (No. 110513) was initially issued on December 15, 1995, most recently renewed on November 30, 2006 with viability through November 30, 2008. The license was in active status at the time that the contract was formed and work performed that led to the present Complaint. 2. Gerde Kerry Aymami is the Qualifying Party identified on the Kerry S Painting, Inc. (hereinafter also, “the Contractor” or “Kerry S Painting”) license. 3. The project at issue involved painting a newly-constructed residence situated in Cave Creek, Arizona. The work was performed on Arizona property, the contract under which the construction was performed was executed in Arizona, and the Contractor was licensed by the Registrar of Contractors. As such, the Complaint falls within the requirements of Title 32, Chapter 10, Article 3. 4. Ms. Novick, acting as joint Owber/Builder with Ron Boat, engaged Kerry S Painting, Inc. to perform the exterior painting project in 2002. 5. After the work was performed, Complainant noticed deficiencies in the finish. 6. Kerry S Painting repainted the home in May 2003 (according to Mr. Aymami) or November 2003 (according to Ms. Novick) gratuitously (according to Mr. Aymami). Ms. Novick asserts that she paid $2,500. to Kerry S Painting for the repainting project. In support of her contention of payment, Ms. Novick offered evidence from her QUICKEN®[2] checking records that she paid $2,500. to Kerry S Painting on or about November 26, 2003[3] with a memo “re-paint house.” Based on that record, it is probable that the repainting occurred in November 2003. . . . 7. The home was again repainted by Kerry S Painting in November 2005. This job was performed gratuitously by Kerry S Painting. 8. Having become disconcerted over the quality of Kerry S Painting’s seeming inability to correct the problem, Complainant Novick filed a Complaint to the Registrar of Contractors on November 21, 2006. 9. ROC Inspector Bob Davies conducted an inspection of the property on December 19, 2006. Not having the information from Ms. Novick’s QUICKEN® records and assuming the 2003 repainting had been performed in May and done so gratuitously, Inspector Davies concluded that the ROC lacked jurisdiction over the Complaint under A.R.S. § 32-1155(A).[4] Therefore, despite his opinion that deficiencies in the painting product were evident, the Inspector did not issue a “Corrective Work Order.” 10. Because Ms. Novick had given notice that Kerry S Painting had not resolved her concerns about the exterior paint job, the Registrar of Contractors issued a CITATION AND COMPLAINT against Respondent’s license on March 20, 2007 therein citing Kerry S Painting, Inc. for violation of A.R.S. § 32-1154(A)(3) and (7). 11. Kerry S Painting filed its A.R.S. § 32-1155(A) ANSWER to the CITATION AND COMPLAINT on April 2, 2007 attributing the problem complained of to excess moisture, a condition unrelated to its product and responsibilities. . . . . . . 12. Thereafter, upon request of Ms. Novick because no resolution of the problem was forthcoming, the Registrar issued a NOTICE OF HEARING on or about May 31, 2007 and a Hearing was conducted pursuant thereto. 13. The weight and sufficiency of the evidence does not persuade that Kerry S Painting has performed below workmanship standards on this project. 14. Inspector Davies gave his opinion that the cause of the deficiency, of which he most recently observed as yet subsisting at a July 30, 2007 Prehearing Inspection, is that moisture has entered the product through stucco cracks and/or that the surface had not adequately been prepped between coats. He cannot state with specificity what has created the condition. Therefore, he cannot fault the Contractor in its performance. 15. Ms. Novick offered the opinion of two “Consultants” to whom she had forwarded samples of the painting product. Barry Barman affirmed that excess moisture is the cause of the problem, albeit he is unable to identify the source of the problem-causing agent. Ray Tombaugh suggested several possible causes, none of which could he pinpoint as the specific cause of the condition.[5] The opinions of Barman and Tombaugh are accorded little weight[6] (1) for want of foundation;[7] (2) unavailability for questioning; and (3) uncertainty as to causation. 16. The weight and sufficiency of the evidence does not establish that Kerry S Painting has acted wrongfully on the subject project by performing below workmanship standards. The evidence does show that the Contractor has made several attempts to fix the problem, albeit unsuccessfully. . . .

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154(A)(3) (and A.A.C. R4-9-108, the “workmanship rule”), and (7). Those statutory sections require that a holder of a license or a person listed on a license not commit the following:

3. Violation of any rule adopted by the Registrar.

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

. . .

A.A.C. R4-9-108 is the rule violation charged under A.R.S. § 32- 1154(A)(3). The rule requires that all construction work be done in a professional and workmanlike manner and in accordance with applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over Complaint No. 07-1180 under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154. Kerry S Painting, Inc. is a licensee. 2. The burden of persuasion generally at an administrative hearing falls to the party asserting a claim, right or entitlement, or an Agency seeking to impose a penalty.[8] Further, the standard of proof is that of the “preponderance of the evidence.”[9] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[10] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case Ms. Novick, is more probably correct on the issue(s) in dispute. 3. Observing these standards, Complainant Novick has not persuaded, by a preponderance of the evidence, that Respondent Kerry S Painting has violated the cited statutory and regulatory provisions. 4. By a preponderance of all of the evidence, Complainant has not persuaded that, in its painting and repainting efforts, Kerry S Painting has violated A.R.S. § 32-1154(A)(3) and (7) as charged in the CITATION AND COMPLAINT. 5. An examination of Kerry S Painting, Inc.’ license record[11] reveals that one (1) other Complaint has been filed against the license.”[12] That Complaint has been “Resolved/Settled/Withdrawn.” Therefore, license history does not reveal a basis for an assessment clothed in aggravation had a violation been found.

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors enter an Order dismissing Complaint No. 07-1180-ROC. In the event of the certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall fall forty days from the date of that certification.

Done this 31st day of July 2007.

_____________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this 1st day of August 2007 to:

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

By ___________________________

----------------------- [1] The record consists of those documents found within the Agency’s case file, the contents of which the Administrative Law Judge has accorded Administrative notice, the exhibits offered by Complainant, and the digital record of the proceedings under A.A.C. R2-19-121.

[2] QUICKEN® provides, among other things, budget control software.

[3] See Exhibit C-1.

[4] A.R.S. § 32-1155. Filing of complaint; resolution of complaint; service of notice; failure to answer

A. Upon the filing of a written complaint with the registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act that is cause for suspension or revocation of a license, the registrar after investigation may issue a citation or upon written request of the complainant may issue a citation directing the licensee, within ten days after service of the citation upon the licensee, to appear by filing with the registrar the licensee's written answer to the citation and complaint showing cause, if any, why the licensee's license should not be suspended or revoked. Service of citation upon the licensee shall be fully effected by personal service or by mailing a true copy thereof, together with a true copy of the complaint, by registered mail in a sealed envelope with postage prepaid and addressed to the licensee at the licensee's latest address of record in the registrar's office. Service of the citation and complaint shall be complete at the time of personal service or five days after deposit in the mail.

[5] Exhibit C-1.

[6] On a scale of “No Weight > Little Weight > Substantial Weight > Conclusive Weight.”

[7] See BLACK’S LAW DICTIONARY 682 (8th ed. 2004): foundation : “The basis on which something is supported.” Preliminary fact questions were not explained by Ms. Carlson. See DeElena v. Southern Pac. Co., 121 Ariz. 563; 592 P.2d 759 (1979) (The proponent of evidence has the burden of establishing the predicates for admissibility and weight).

[8] See Ariz. Admin. Code R2-19-119 (B).

[9] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (A).

[10] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also J. LIVERMORE, R. BARTELS, & A. HAMEROFF, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

[11] See A.A.C. R4-9-117. Prior Record

In any disciplinary proceeding conducted by the Registrar, the licensee's entire license file including the record of prior citations and decisions may be considered by the Registrar in making a decision and order in the case.

[12] See http://www.azroc.gov/clsc/AZROCLicenseQuery

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