ALJDEC decisions subject to certification as final

08F-Y0195-ROC · Registrar of Contractors · 2009-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2009; 9:00 a.m. APPEARANCES: Complainant Ms. Gloria Mendoza represented herself. Respondent Mr. Jesse Torrez Moreno dba Yuma Painting represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent Mr. Jesse Torrez Moreno dba Yuma Painting is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona, holding Class C-34 License number 133363. 2. Complainant Ms. Gloria Mendoza contracted with Respondent to paint the interior and exterior of her residence in Yuma, Arizona. The parties entered into the contract in October 2007 and the Respondent finished his painting the next month. 3. Complainant was dissatisfied by the Respondent’s paint job and filed the instant Complaint with the Arizona Registrar of Contractors on February 19, 2008, alleging several defects. 4. The Complaint was assigned to Registrar of Contractors Inspector Daryl McCloskey who conducted a job site inspection on March 5, 2008. During his inspection, Inspector McCloskey discovered that the Complainant had already hired another painter to redo much of the Respondent’s work, and that the third-party contractor had in fact performed some painting of its own. 5. Nevertheless, Inspector McCloskey was able to ascertain that some of the alleged Complaint items raised by the Complainant were true, and he accordingly issued a written Corrective Work Order (CWO) to Respondent dated March 5, 2008. The CWO ordered Respondent to correct five items within 15 calendar days, which was a reasonable amount of time. 6. Respondent failed to correct all the items listed in the CWO, so Complainant requested an administrative hearing. 7. Inspector McCloskey testified at the hearing. He testified that he had performed a pre-hearing inspection on May 5, 2009. He had found and testified that the third-party contractor had corrected some of the overspray that was ordered to be corrected. He also testified that the third-party contractor had performed other painting work that went beyond Respondent’s work that needed correcting. The third-party contractor billed Complainant, and Complainant seeks restitution from the Respondent in the amount of that bill. 8. Complainant’s testimony and her photographic evidence bear out the testimony of the Inspector. Respondent must return and correct the items listed in the CWO that have not already been corrected by others. Respondent should not be responsible for restitution in the form of reimbursement for the third-party contractors’ bill because the evidence proved that some of that work was independent of the Respondent’s work, and was performed before Respondent had been given a reasonable opportunity to correct them himself. Respondent, however, did have a reasonable opportunity to correct other of the CWO items, but failed to do so. 9. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156, and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.7, 23 and 3 (namely A.A.C. R4-9-108, Workmanship Standards). 3. Respondent violated A.R.S. § 32-1154.A.3, namely A.A.C. R4-9-108, by the poor workmanship on the house painting as proved by the Complainant’s testimony, photographs and the testimony of the Inspector. 4. Respondent violated A.R.S. § 32-1154.A.23 by failing to correct at least some of the items in the Inspector’s CWO within a reasonable amount of time without valid justification. 5. There is no evidence of any wrongful or fraudulent act by the Respondent in violation of A.R.S. § 32-1154.A.7, independent of the other violations already concluded to have occurred.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it, is hereby recommended that Respondent’s Class C-34 License number 133363 be suspended until the Respondent has properly accomplished all remaining items on the Inspector’s March 5, 2008 CWO. It is further recommended that in the event the Respondent submits written proof the Registrar, and the Registrar accepts such proof, that it has properly accomplished, the above-described corrective action on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above- provided license suspension shall not occur and Citation and Complaint Y08- 0195 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, May 13, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com