ALJDEC decisions subject to certification as final

09F-A0322-ROC · Registrar of Contractors · 2009-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 12, 2009 at 8:15 a.m. APPEARANCES: Complainant Doris Kile appeared on her own behalf; Respondent Weathershield appeared through Vincent Joseph Lombardi, a member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On September 18, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC224274, Class C-05 for residential wood restoration and concrete staining to Respondent V and V Enterprises LLC dba Weathershield, a limited liability company. In June 2007, Respondent cleaned, restored, and stained the three wooden decks and exterior hand-railings at Complainant Doris Kile’s residence at 1858 Forest View, Prescott, Arizona. On July 11, 2007, Complainant filed a complaint against Respondent’s license, alleging that the windows needed to be cleaned and that Respondent had damaged the windows in an attempt to clean them. The Registrar denominated Complainant’s first complaint Case No. A08-0011. The Registrar assigned Case No. A08-011 to Inspector Cliff Frandsen for investigation. On July 31, 2007, Inspector Frandsen issued a Corrective Work Order (“CWO”) to Respondent, directing it to “take necessary and proper action to remove overspray” from some of Complainant’s windows and to address unsuccessful attempts by its subcontractor to clean some of Complainant’s window frames. Inspector Frandsen did not direct Respondent to take any action to address the remainder of Complainant’s complaints. Pursuant to Complainant’s request, a hearing in Case No. A08-0011 was held before Administrative Law Judge (“ALJ”) Brian E. Smith on July 29, 2008. Based on the testimony of Inspector Frandsen and Respondent’s employees Ben Lombardi (“Ben” or “Ben Lombardi”), Vince Lombardi (“Mr. Lombardi”), and Howard Gourley that Respondent had timely and adequately complied with the CWO, ALJ Smith recommended that the Registrar dismiss Complainant’s complaint in Case No. A08-0011. On September 3, 2008, the Registrar accepted ALJ Smith’s recommendation and dismissed Complainant’s complaint in Case No. A08-0011. On February 13, 2009, the Registrar received a second complaint against Respondent’s license from Complainant, which alleged that the stain on Complainant’s decks and hand-railings were fading and that Respondent’s employee Ben Lombardi made a promise to restain the decks in front of Inspector Frandsen. The Registrar denominated this second complaint Case No. A09-0322, the instant complaint. Inspector Frandsen performed another jobsite inspection and, on March 16, 2009, informed the parties that he had determined that complaint should be closed for the following reasons: This inspector has no knowledge of a verbal commitment by the contractor to re-do the decks and railings.

There are portions of the deck area and hand rail that have faded. These areas experience constant adverse weather conditions. The fading of the product is natural.

If you disagree with this decision, you may request, in writing, a formal citation against the respondent’s license. . . .

On March 18, 2009, Complainant requested that the Registrar issue a formal citation against Respondent’s license. On June 19, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(2), (7), (3) (namely A.A.C. R4-9-108), and (13) (namely A.R.S. § 32-1124(B)). On June 29, 2009, the Registrar received Respondent’s Written Answer to the Citation and Complaint, which denied any statutory violations and affirmatively alleged that, in an attempt to collect $8,847.50, the amount she believed would pay to restain the fading areas of her deck, Complainant had filed claims to Respondent’s bond company and insurance company. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. The case was originally assigned to ALJ Brian Brendan Tully. On September 23, 2009, Complainant submitted subpoenas to compel Respondent’s employees Ben Lombardi, who had allegedly made the promise to restain her decks, Cassie Conrad, and Mr. Gourley to attend and testify at the hearing. ALJ Tully signed the subpoenas and returned them to Complainant. On September 28, 2009, Complainant requested that she be allowed to present telephonically the testimony of her witnesses Ben Lombardi, Mr. Gourley, and Ms. Conrad. On September 29, 2009, the Registrar issued a Notice of Hearing, setting an administrative hearing on November 12, 2009. On October 5, 2009, ALJ Tully granted Complainant’s request to present the testimony of the three witnesses telephonically, at her own expense, and instructed Complainant to have the witnesses to place the call. ALJ Tully informed Complainant that the Office of Administrative Hearings would not place calls to these witnesses or assume responsibility for securing their testimony at the hearing. On October 6, 2005, ALJ Tully received correspondence from Mr. Lombardi on behalf of Respondent, in relevant part as follows: Enclosed are copies of the cover page of subpoenas for Ben Lombardi, Howard Gourley and Cassie Conrad, my former employees, that were delivered to me this morning for forwarding to them.

There is a dubious notation at the top of each subpoena which may have been added AFTER the subpoena was signed by you. The statement read: “Produce phone number and address Howard, et al., to Judge Tully by 10-16-09; and be available to question on November 12, 2009 by telephone during hearing!” This notation is underlined in red ink. The same notation is at the top of the subpoena for Cassie Conrad and Ben Lombardi.

If you have in fact, requested this information regarding my three former employees, please advise . . . and I will provide this information to the court . . . .

On October 7, 2009, ALJ Tully issued a minute entry order, advising the parties in relevant part as follows: Complainant is responsible for properly serving the individuals named in the subpoenas issued at her request. Mr. Lombardi is under no obligation to serve the subpoenas for Complainant if he does not want to do so. . The matter was reassigned to the undersigned ALJ. A hearing was held through videoconference on November 12, 2009. Complainant testified and submitted five exhibits. Mr. Lombardi on behalf of Respondent testified and submitted seven exhibits. Inspector Frandsen testified telephonically. Complainant testified that the subpoenas were served on Mr. Lombardi. Her process server had told her that Mr. Lombardi told the process server that he would give the subpoenas on his former employees. Complainant testified that, after four months, the stain that Respondent had applied to her decks and handrails had started to fade. Complainant testified that Mr. Lombardi’s son Ben that told her that, if she did not take them to court, Respondent would reapply the stain. Mr. Lombardi denied that he or his employee had ever promised Complainant that Respondent would restain the decks and handrails. Respondent is a business; it does not offer to do free work. Mr. Lombardi also denied ever agreeing to accept Complainant’s subpoenas on his former employees’ behalf or to serve the subpoenas on Respondent’s former employees. Mr. Lombardi testified that Respondent’s house is located on a ridge, where it is exposed to weather. Complainant’s house has three decks and numerous hand-railings. Mr. Lombardi testified Respondent provides a warranty for vertical surfaces for four years and for horizontal surfaces for two years. Portions of Complainant’s deck are due for a re-coating, which Respondent usually performs at approximately 15% of the original application price. Inspector Frandsen testified consistently with his March 16, 2009 letter. He testified that, at his original jobsite inspection in Case No. A08- 0011, he had asked Complainant if she had any issues with the stain, and she had answered, “No.” Inspector Frandsen testified that certain areas of Complainant’s deck “get constant sun and adverse weather.” Inspector Frandsen testified that, under the Registrar’s workmanship standards, the Registrar has jurisdiction over complaints involving exterior stain for one year after application. Complainant’s claim is beyond this jurisdictional limit. 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] With respect to the possible deficiency of “[d]eterioration of stains, varnish, or lacquer finishes,” the Registrar’s workmanship standards provide acceptable tolerances as follows: Finishes on interior woodwork should not deteriorate during the first year of ownership. However, varnish type finishes used on exterior will deteriorate rapidly.[5]

Because the Registrar received Complainant’s complaint that the exterior stain at her house had faded nearly 20 months after Respondent applied the stain, Complainant’s complaint is time-barred. With respect to service of subpoenas issued by the Office of Administrative Hearings, A.R.S. § 41-1092.07(C) provides that “[t]he subpoenas shall be served and, on application to the superior court, enforced in the manner provided by law for the service and enforcement of subpoenas in civil actions.” Ariz. R. Civ. P. 45(b) provides that “[s]ervice of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law.” Because Complainant did not properly serve the subpoenas on Respondent’s former employees, no adverse inference may be drawn from their failure to testify at the hearing. Based on the foregoing, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(3)[6] or (7)[7] with respect to its application of stain to her deck and hand-railings. Complainant also did not establish that Respondent promised to restain her deck at no charge. Complainant also did not establish that Respondent violated any of the other charged statutes. 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 dismiss Case No. A09-0322 against Respondent V and V Enterprises LLC dba Weathershield’s License No. ROC224264, Class C-05. 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, November 20, 2009.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [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] Workmanship Standards for Licensed Contractors at 20 (“Painting”) (February 2009). [6] 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.” [7] 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.”

-----------------------

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