ALJDEC decisions subject to certification as final

07F-2306-ROC · Registrar of Contractors · 2008-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2008 APPEARANCES: Complainants Francis and Christine Newland appeared on their own behalf. Respondent Joshua Tree Painting, L.L.C. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Joshua Tree Painting, L.L.C. (“Joshua”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Matter At the outset of the hearing, it was determined that the caption in this matter should be amended to include Christine Newland as a named Complainant. The caption now reflects such amendment. Procedural Background On January 18, 2008, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on February 26, 2008 at 1:30 p.m. On the date and at the time scheduled for the hearing, Complainants Francis and Christine Newland appeared on their own behalf. No one appeared on behalf of Joshua. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Joshua, or the receipt of any information that would constitute good cause for Joshua’s absence or delay. No such information was received. Therefore, the hearing proceeded in Joshua’s absence. FINDINGS OF FACT Joshua is the holder of a Class C-34 license (No. 225259) issued by the Registrar of Contractors (“ROC”).[1] In November 2006, Mr. and Mrs. Newland contracted with Joshua for Joshua to paint the exterior of the Newlands’ home. On November 22, 2006, the Newlands paid Joshua a deposit in the amount of $800.00. On November 27, 2006, Joshua began its work at the Newlands’ home, and the Newlands paid Joshua an additional $850.00. On December 2, 2006, Joshua completed its work at the Newlands’ home and the Newlands paid Joshua the contract balance of $1,650.00. Almost immediately upon completion of the work, the Newlands noticed that the paint appeared streaky. The Newlands contacted Joshua on numerous occasions, however, Joshua failed to address the Newlands’ concerns. Shortly thereafter, the Newlands also noticed that Joshua had failed to paint a portion of the home, and that the paint was beginning to peel. On April 9, 2007, the Newlands filed a complaint against Joshua with the ROC. In their complaint, the Newlands alleged the following: Contractor did not finish job, promised to return & did not. Took 5 gal. of owner’s paint & never returned it. Damaged patio by overspray & did not repair it. Photos provided.

ROC Inspector Jeff Fleetham investigated the Newlands’ complaint. On May 21, 2007, Inspector Fleetham conducted a jobsite inspection. Mr. Newland was present for the inspection. Joshua did not attend the inspection. On May 23, 2007, following the jobsite inspection, Inspector Fleetham issued a Corrective Work Order (“CWO”) under which the ROC gave Joshua 15 days to take corrective action as follows: Contractor to correct the following by appropriate means:

1. Peeling paint on all exterior walls. 2. Paint on chimney not complete.

On July 19, 2007, Inspector Fleetham issued an addendum to the CWO as follows: No action required by the contractor on the following items:

1. Took 5 gallons of owners[‘] paint and never returned. Inspector has not (sic) first hand knowledge. 2. Paint overspray on patio. Corrected by others prior to jobsite inspection.

9. Inspector Fleetham testified that he conducted a pre-hearing inspection on February 26, 2008, at which only Mr. Newland was present. Inspector Fleetham testified that Joshua had not performed any corrective work and has failed to comply with the CWO. Inspector Fleetham further testified that the paint is extensively and excessively peeling on all areas of the exterior of the house, including on the wood trim and the stucco. Inspector Fleetham further testified that the northwest portion of the chimney has not been painted. 10. Mrs. Newland testified that the condition of the paint has further deteriorated over time, and that Joshua has not made any attempt at corrective work. The Newlands submitted into evidence copies of photographs depicting the peeling paint and poor quality of Joshua’s work. See Exhibit 1. Mrs. Newland further testified that she has contacted other contractors to remedy the situation and has been advised that the corrective work will be costly due to the fact that the paint applied by Joshua will need to be removed before the house can be re-painted properly.

11. The Newlands did not address at hearing the overspray issue or the five gallons of missing paint. CONCLUSIONS OF LAW In this proceeding, the Newlands bear the burden to prove, by a preponderance of the evidence, that Joshua is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its October 5, 2007 Citation and Complaint. See Arizona Administrative Code (“A.A.C”) R2-19-119. 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). The Administrative Law Judge concludes that the Newlands met their burden of proof as to all four of the ROC’s charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes, based on the weight of the credible evidence of record, that Joshua abandoned its contract with the Newlands without legal excuse for such abandonment, by failing to complete the project and by failing to correct the deficiencies in its work. Therefore, the Administrative Law Judge concludes that Joshua violated A.R.S. § 32- 1154(A)(1). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Joshua with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Joshua failed to perform its work at the Newlands’ home in a professional and workmanlike manner as evidenced by the poor condition and continuing deterioration of the paint. Therefore, the Administrative Law Judge concludes that Joshua violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Joshua a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Joshua failed to perform the required corrective work without valid justification. Therefore, the Administrative Law Judge concludes that Joshua violated A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Joshua committed wrongful acts that substantially injured the Newlands by failing to perform its work at their home in a professional and workmanlike manner and by failing to correct those deficiencies. Therefore, the Administrative Law Judge concludes that Joshua violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Joshua’s Class C-34 license. Upon consideration of all of the facts and circumstances presented by this case, including Joshua’s failure to appear for hearing and its suspended license status, the Administrative Law Judge concludes that the ROC should revoke Joshua’s Class C-34 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Joshua’s Class C-34 license shall be revoked 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 40 days from the date of that certification. Done this day, March 3, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of March, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Joshua’s contracting license was suspended on January 22, 2008 in Case No. 07-1996. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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