ALJDEC decisions subject to certification as final

2009A-7100203-ROC · Registrar of Contractors · 2010-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2010 at 1:00 p.m. APPEARANCES: Complainant Jayne Gamache appeared on her own behalf; Respondent Absolutely Perfect Painting, L.L.C. appeared through William H. Moeller, its managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In October 2006, the Registrar of Contractors (“the Registrar”) issued License No. ROC225837, Class C-34 for residential painting and wall covering to Respondent Absolutely Perfect Painting, L.L.C. Respondent’s qualifying party is William H. Moeller. Complainant Jayne Gamache filed a complaint with the Registrar against Respondent alleging certain deficiencies in the painting that Respondent contracted to perform at her home at 26002 N. 102nd Ave., Peoria, Arizona 85383. The Registrar designated this complaint as Case No. 08-2313. The Registrar assigned the complaint in Case No. 08-2313 to Inspector Eric Ulinger for investigation. Inspector Ulinger performed a jobsite inspection and issued a Corrective Work Order (“CWO”) to Respondent. The Registrar issued a citation against Respondent, Respondent filed a timely written answer, and the Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On May 5, 2009, a hearing was held in Case No. 08-2313 before Administrative Law Judge (“ALJ”) Mark A. Silver of the OAH. Respondent failed to appear for the hearing. Complainant presented evidence of Respondent’s workmanship deficiencies and proof that she had paid another contractor $9,500.00 to repaint the exterior of her house. Based on Complainant’s evidence, ALJ Silver issued a decision in Case No. 08-2313, finding that Respondent’s workmanship in the painting of the interior and exterior of Complainant’s house was deficient in 12 specifically enumerated respects. ALJ Silver noted that Respondent’s license had been suspended by operation of law since November 1, 2008, for failure to renew. Therefore, ALJ Silver recommended that the Registrar find that Respondent had violated A.R.S. § 32-1154(A)(3),[1] (7),[2] and (23)[3] and revoke Respondent’s license unless Respondent paid $9,500.00 to Complainant. On June 11, 2009, the Registrar substantially accepted ALJ Silver’s recommended decision in Case No. 08-2313. Respondent did not comply with the Registrar’s final Decision and Order in Case No. 08-2313 and, as a result, on or about September 18, 2009, the Registrar revoked Respondent’s license. The Registrar subsequently received Complainant’s claim to the Residential Contractors’ Recovery Fund (“the Fund”). The Registrar designated this claim as Case No. RF10-0203 and, subsequently, as Case No. 2009-7100203. Complainant provided estimates from three appropriately licensed contractors to repaint the interior of her house. On or about July 21, 2009, Inspector Ulinger prepared a Recovery Fund Inspection Report in Case No. 2009-7100203, opining that Complainant was entitled to recover $12,120.00, consisting of the $9,500.00 she had paid to repaint the exterior of the house, plus the low bid of $4,520.00 to repaint the interior of the house, less the $1,900.00 that she still owed to Respondent under the parties’ contract. Inspector Ulinger noted in relevant part as follows in his Recovery Fund Inspection Report: The homeowner also provided a copy of an additional check (#3997) for interior painting performed by Woodyard Painting. I called the homeowner on 6/21/2010 to determine what work was performed. She informed me that it was for work that was not required in the Decision and Order [in Case No. 08-2313] and that she upgraded the paint finish. I informed the homeowner that work that is not required in the order is not eligible for Recovery Fund.

On August 23, 2010, the Registrar issued a Notice of Claim for Administrative Payout in Case No. 2009-7100203 that informed the parties that the Fund determined that Complainant was to be awarded $12,120.00 in the form of a payment issued by the Fund. On or about August 31, 2010, the Registrar received Respondent’s request for hearing in Case No. 2009-7100203. The Registrar referred the matter back to the OAH for an evidentiary hearing in Case No. 2009-7100203. A hearing was held on December 7, 2010, in Case No. 2009-7100203. Complainant testified on her own behalf. Mr. Moeller testified and submitted two exhibits on behalf of Respondent. Complainant requested that in addition to the $12,120.00 recommended in Inspector Ulinger’s Recovery Fund Inspection Report and noticed in the Registrar’s Notice of Claim for Administrative Payout, an award should be made for the $1,473.00 that she had paid to Woodyard Painting for interior repairs. Complainant testified that the enumerated interior items in the Registrar’s final Decision and Order in Case No. 08-0203 represented “just the tip of the iceberg” of the work that needed to be done. Complainant testified that before Woodyard Painting performed the interior repairs, she had been living in a new house that looked as though it had been painted by a “do-it-yourselfer.” Mr. Moeller testified that the CWO did not require Respondent to repair many of the items that the Registrar’s final Decision and Order in Case No. 08-0203 determined to be defective. After the undersigned ALJ explained that she could not reconsider or alter the workmanship deficiencies established by the Registrar’s final Decision and Order in Case No. 08-0203, Mr. Moeller pointed out that Inspector Ulinger’s Recovery Fund Inspection Report determined that Complainant was not entitled to the additional $1,473.00 that she was claiming from the Fund. Complainant did not dispute that she had said the things that Inspector Ulinger reported and did not dispute the conclusions of his Recovery Fund Inspection Report. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[4] In Arizona, “‘[p]ublic policy dictates that there be an end to litigation; that those who have contested the issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.’”[5] “That the judgment was rendered by default does not affect its validity, for such a judgment admits as true all the material allegations properly set forth in the complaint and is just as binding and conclusive as to them as though it had been rendered after answer and contest.”[6] Therefore, the Registrar’s final Decision and Order in Case No. 08-2313 conclusively established that Respondent violated the charged statutes in the twelve specifically enumerated respects and that Respondent’s statutory violations in painting the exterior of Complainant’s house caused damages in the amount of $9,500.00. The only issue remaining to be resolved at the hearing on Complainant’s claim to the Fund is the amount of damages caused by Respondent’s proven statutory violations in painting the interior of Complainant’s house.[7] Complainant bears the burden of proof and must establish the amount of the remaining damages caused by Respondent’s statutory violations by a preponderance of the evidence.[8] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] 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.”[10] Neither Complainant nor Mr. Moeller disputed the findings in Inspector Ulinger’s Recovery Fund Inspection Report. Therefore, Complainant established that she is entitled to an award from the Fund in the amount of $12,120.00, but no more. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar order the Residential Contractors’ Recovery Fund to pay $12,120.00 to Complainant Jayne Gamache. It is further recommended that pursuant to A.R.S. § 32-1139(B), the Registrar not reinstate Respondent Absolutely Perfect Painting, L.L.C.’s License No. ROC225837, Class C-34 or issue any license to any person listed on the license until the Fund has been reimbursed in the amount of $12,120.00, plus interest at the rate of ten percent per year. 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, December 20, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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 cited 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.” [2] This statutory subsection formerly included 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.” The former statute applied to the underlying workmanship complaint. [3] 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.” [4] See A.R.S. § 32-1101 et seq. [5] Lofts v. Superior Court, 140 Ariz. 407, 410, 682 P.2d 412, 415 (1984) (quoting Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525, 51 S. Ct. 517, 518, 75 L. Ed. 1244 (1931)). [6] Collister v. Inter-State Fidelity Building and Loan Ass’n, 44 Ariz. 427, 435, 38 P.2d 626 (1934) (citations omitted). [7] See A.R.S. § 32-1132(A). [8] See A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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