ALJDEC decisions subject to certification as final

09F-0126-ROC · Registrar of Contractors · 2009-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 23, 2009 at 9:00 a.m. APPEARANCES: Complainant Michael L. Kasumovic appeared on his own behalf; Respondent Michael A. Martinez dba Majestic Coatings and Wall Coverings appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On November 9, 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC190250, Class K-34 for dual painting to Respondent Michael A. Martinez dba Majestic Coatings and Wallcovering, a sole proprietorship. On August 17, 2007, Respondent had contracted with Complainant Michael L. Kasumovic and his wife Heather Kasumovic to prepare, stain, and finish 14 wood doors, nine door jambs, and two wood sidelights, for a total cost of $2,385.00. Respondent completed the work on September 25, 2007. On April 30, 2008, Complainant requested that the Registrar conduct a courtesy inspection through the Building Confidence Program. On June 12, 2008, the Registrar’s Inspector Randy Cason inspected Respondent’s work at Complainant’s job and rendered the following opinion: Stain on doors is within standards. However, the clear coat finish is not. Has small bubbles and rough spots on surface. Ctr is to comply with door manufacturer’s specs on stain finish. All of door needs to be stained top & bottom per specs.

On July 8, 2008, the Registrar received a complaint against Respondent’s license from Complainant, which alleged the following five specific workmanship deficiencies in Respondent’s completion the contract: (1) Respondent had failed to seal the tops and bottoms of the doors, contrary to the manufacturer’s specifications; (2) Respondent had failed to sand the doors prior to applying the stain, contrary to the manufacturer’s specifications; (3) Respondent had failed to seal the doors prior to applying the stain, contrary to the manufacturer’s specifications, and as a result the stain that Respondent applied to the doors and door jams was not uniform and showed “handling marks, fingerprints, and/or blemishes” on all thirteen finished doors; (4) The finished doors and doorjambs did not match the color sample that Respondent had provided prior to completing the job; and (5) Wood on the two exterior doors was splitting on both the top and bottom panels. Inspector Cason performed a jobsite inspection and, on August 11, 2008, issued a Corrective Work Order (“CWO”) to Respondent to correct Complaint Item #1 by sealing the tops and bottoms of the doors, as required by the manufacturer’s specifications. Inspector Cason’s August 11, 2008 CWO did not direct Respondent to correct Complaint Item #2 or #3 because he could not tell from the condition of the doors and had no first-hand knowledge of whether or not Respondent had followed the manufacturer’s specifications in the preparation of the doors for staining. With respect to Complaint Item #4, Inspector Cason’s August 11, 2008 CWO noted that, in his opinion, Respondent’s “finished application of the stain material applied to the wood surfaces [met] Workmanship Standards.” However, Inspector Cason directed Respondent to correct by appropriate means the finished clear coat sealer that Respondent had applied over the stain because the sealer had “small pox marks and air bubbles on the finished surface on some of the doors.” With respect to Complaint Item #5, Inspector Cason’s August 11, 2008 CWO also directed Respondent to correct by appropriate means the top panel on both exterior doors, which had split. On September 4, 2008, the Registrar received Complainant’s request for hearing on all five items of complaint. On January 30, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(2), (7), (23), (3) (namely A.A.C. R4-9-108), and (13) (namely A.R.S. § 32-1124(B)). Respondent timely answered the Citation and Complaint, denying any statutory violation and affirmatively alleging that “[t]he staining work was up to standards” and that Complainant had refused to allow access for Respondent to comply with the CWO. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for the scheduling of a fair hearing. On March 30, 2009, the Registrar issued a Notice of Hearing on Complainant’s complaint against Respondent’s license. After one continuance at Complainant’s request, a hearing was held on July 23, 2009. Complainant and his wife testified and submitted 12 exhibits, plus subparts. Respondent testified and submitted one exhibit. Inspector Cason also testified. Additional Hearing Evidence Complainant alleged that Respondent had gotten stain on a wall when he had stained the door jams. Because this item was not included in the original complaint or in any amendment to the complaint and was not addressed in Inspector Cason’s CWO, the Administrative Law Judge did not allow Complainant to present evidence regarding it. The parties’ contract was oral. Complainant submitted a copy of Respondent’s business card, which showed Respondent’s license number, preceded by the acronym “ROC.” On the back of the card was Respondent’s bid for the job, including 14 new doors, garage door refinish, front door touch up and refinish, and four French doors, for $2,100.00 plus $285.00, a total cost of $2,385.00. Correspondence from Respondent also appears in the file. The letterhead shows Respondent’s license number preceded by the acronym “ROC.” Complainant admitted that he would not allow Respondent access to comply with the CWO unless Respondent agreed to correct all five items of complaint, including those that Inspector Cason had not ordered Respondent to correct. Complainant provided a bid from Scottsdale Stain for $4,245.00 to remove, strip and refinish, and rehang the doors and to strip and refinish the door jams and sidelights. Complainant argued that, because Respondent’s workmanship was deficient and he and his wife did not get along with Respondent, they should not be required to provide access but, instead, Respondent should be required to pay $3,566.47 to Scottsdale Stain to strip, restain, and refinish the doors to address Complainant and his wife’s concerns. Complainant also requested that he and his wife be relieved of the contractual obligation of paying the $1,300.00 that remained due to Respondent under the parties’ agreement. Complainant brought two of the doors to use as demonstrative exhibits at the hearing. Complainant pointed out certain irregularities in the grain of the wood on the doors, which he called “handling marks, fingerprints, and/or blemishes.” Complainant also brought a piece of trim, which had irregularities in the grain, which Complainant attributed to Respondent’s poor workmanship. Complainant also brought the sample piece of wood that Respondent had said he would match. Complainant testified that he and his wife had asked Respondent to match the doors in the breakfast room when he stained the 13 doors and door jambs. Inspector Cason testified consistently with the notes of his courtesy inspection and his August 11, 2008 CWO. Inspector Cason testified that what Complainant characterized as “handling marks, fingerprints, and/or blemishes” on the wood were caused by natural blemishes in the wood, which caused different parts of the wood to absorb stain differently. Inspector Cason testified that the appearance of the wood complied with applicable standards and did not evidence poor workmanship. In addition, Inspector Cason testified that, in his opinion, Respondent had done a good job of matching the 14 doors to the doors in Complainant’s breakfast room. In Inspector Cason’s opinion, Respondent also had done a good job of matching the 12 interior doors, which were maple, to the exterior doors, which were fir, and to the door jambs, which were pine. Respondent testified that Complainant had denied him access to the jobsite before Respondent could complete the job by sealing the bottom of the doors after the doors were hung in the door jambs. Respondent showed the Administrative Law Judge the tool that is used for this purpose. Respondent testified that he has been in the business of applying paint and stains since 1983, first in California and then in Arizona. Complainant submitted the sticker that was on top of the Jeldwen Corinthian doors that Respondent had stained. The finishing instructions for the stain finish were as follows: 1. Apply solvent based sealer to all surfaces, including top and bottom.

2. Lightly sand with 220 grit sandpaper.

3. Apply solvent based wiping stain to all surfaces.

4. While still wet, wipe stain with clean lint-free cloth to desired tone.

5. When thoroughly dry, apply one or more clear top coats to all surfaces.

Respondent testified that he had lightly sanded the doors before he stained them. Respondent also testified that he did not preseal the doors before he stained them. His bid only included the cost of staining and sealing the doors, not applying a preseal. Respondent testified that a presealer may be necessary to match cabinets, but he did not feel that he needed to preseal Complainant’s doors to match the doors in the breakfast room and door jambs. The Registrar’s records reveal that, if the Registrar accepts this recommended decision, it will be the only final order against Respondent on the current record. Respondent’s record therefore is considered as a factor in mitigation of the recommended penalty. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] “Procedural due process requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time.”[5] Before the hearing in this matter, Respondent had no notice that the walls at Complainant’s residence would be at issue in this matter and no opportunity to correct any deficiency that may have existed. Complainant may file another complaint to the Registrar against Respondent’s license for Respondent’s allegedly poor workmanship on Complainant’s walls. Complainant did not show any document that Respondent used in his contracting business that did not bear his license number preceded by the acronym “ROC.” Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(13).[6] Complainant admitted that he did not allow Respondent reasonable access to comply with the August 11, 2008 CWO. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32- 1154(A)(23).[7] The evidence at the hearing established that Respondent stained the doors and door jambs in a professional and workmanlike manner. The evidence at the hearing also established that Respondent matched the doors in the breakfast room and the sample he had provided to Complainant when he stained the doors and door jambs. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(7)[8] or (3)[9] with respect to the color or quality of the stain. Respondent did not seal the bottom of the door, contrary to the manufacturer’s instructions, did not correct the bubbles and pock marks in the clear coat on some of the doors, and did not repair the split top panel of the two exterior doors. Complainant therefore has established that Respondent violated A.R.S. § 32-1154(A)(7) and (3) in these respects. Complainant should be allowed one more opportunity to provide reasonable access and Respondent should be allowed one more opportunity to correct these workmanship deficiencies. With respect to Respondent’s admitted failure to preseal the doors, the failure does not appear to have affected the appearance of the doors or caused the color and quality of the stain not to meet applicable workmanship standards. Nonetheless, Jeldwen’s specifications required Respondent to preseal the doors. Although Complainant has established that Respondent violated A.R.S. § 32- 1154(A)(2)[10] by failing to preseal the doors, the violation was technical. It does not appear that presealing the doors will improve the appearance of what Complainant called “handling marks, fingerprints, and/or blemishes,” which Inspector Cason and Respondent called natural variations in the wood grain. Respondent should not be required to strip, preseal, stain, and seal the doors and jambs as a condition of keeping his license in good standing. Complainant has not established that Respondent cannot or should not be allowed to bring his work up to applicable standards. Complainant therefore has not established that he is entitled to restitution under A.R.S. § 32-1156.01.[11] Respondent is appropriately licensed and his license is in good standing. Complainant is not entitled to dictate the terms or manner of Respondent’s corrective action. If the Registrar accepts this recommended decision and Respondent fails to perform the required corrective actions in a professional and workmanlike manner, Complainant’s remedy is to request a compliance inspection. If Complainant fails to allow reasonable access, his complaint should be closed and he can seek his preferred remedy in a judicial forum. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent Michael A. Martinez dba Majestic Coatings and Wallcovering’s License No. 190250, Class K-34. It is further recommended that the Registrar not suspend Respondent’s license and instead close Complaint No. 09-0126 if, on or before the effective date of the Registrar’s final order, Respondent provides a written proof of one of the following: 1) Respondent in a professional and workmanlike manner has (a) Performed appropriate action to correct the bubbles and pock marks in the clear coat on some of the doors, (b) Performed appropriate action to seal the bottom of the doors, and (c) Performed appropriate action to correct the splitting in the top panels of the two exterior doors that he installed for Complainant; or 2) Complainant has refused reasonable access to allow Respondent to perform the corrective work that the Registrar ordered Respondent to perform. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, July 29, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] Webb v. Arizona Board of Medical Examiners, No. 1 CA-CV 01-0010 at ¶ 9 (Arizona Court of Appeals, Division One, June 25, 2002) (citing Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 106, ¶ 18, 993 P.2d 1066, 1070 (App. 1999)). [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in any material respect to comply with this chapter.” The specific statute violated is A.R.S. § 32-1124(B), which requires that licensed contractors to include their license number, which “shall be preceded by the acronym ‘ROC,’“on “all written bids submitted by the license and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [11] See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater where, although the contractor had made several attempts to repair the heater, he could not make it provide a habitable degree of heat.

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