ALJDEC decisions subject to certification as final

2010A-308471739-ROC · Registrar of Contractors · 2011-02-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 8, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Dawn Garlock. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class C-34 (No. 217055) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed painting work on the exterior of the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and demanded that the exterior painting be corrected to her satisfaction. 4. When the Respondent failed to comply with the Complainant’s demand, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on April 29, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. Credible testimony and evidence established that portions of the Respondent’s painting work on the Complainant’s residence failed to comply with applicable workmanship and industry standards. 7. The Complainant sharply disagreed with the scope of the Corrective Work Order and attempted to obtain a second onsite inspection. 8. Credible testimony and evidence established that the Registrar of Contractors does not apply perfection standards when judging workmanship. The same industry standards are to be applied whether the home is an expensive home or a “lower-end” home and that standard, as applied by the Registrar, is whether the workmanship involved is within applicable industry standards for good and proper workmanship. 9. Credible testimony and evidence established that the Registrar of Contractors does not specify methods of performing corrective work, nor does the Registrar of Contractors delegate this authority to the homeowner. Iinstead, the choice as to the method of corrective work to be used to perform the corrective action set forth in a written Corrective Work Order is left to the licensed contractor, which makes such choice at its peril. 10. Credible testimony and evidence established that the Complainant requested that the Respondent provide her with a written explanation of the painting work that the Respondent was planning to perform on her residence. 11. When the Respondent declined to supply the Complainant with a written explanation of the Respondent’s chosen method of repair, the Complainant refused to allow the Respondent access to her residence. 12. The Complainant’s request for a written explanation as to the Respondent’s selected method of repair is not found to be unreasonable. 13. The Complainant’s denial of access to the Respondent based on the Respondent’s failure to provide a written explanation of its chosen method of repair is not found to be unreasonable. 14. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 15. Both parties demonstrated an ongoing inability to effectively communicate or to schedule their onsite work and both repeatedly resorted to the use of Registrar of Contractors personnel to act as intermediaries. This is not an appropriate agency function. 16. Credible testimony and evidence established that during the course of construction, the parties’ personal relationship deteriorated to the point where the Complainant became physically afraid of the Respondent, and the parties became very distrustful of each other. 17. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the painting of her home are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project in order to bring the final work product up to appropriate industry standards. 18. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, particularly in view of the high probability of police involvement, these parties should avoid direct contact with each other. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor of the Respondent’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. 19. Credible testimony and evidence established that the written agreement utilized for the construction project at issue was prepared by the Respondent. 20. Credible testimony and evidence established that the Respondent’s written agreement with the Complainant fails to comply with the provisions of A.R.S. § 32-1124 B. 21. Notice is taken of the Respondent’s prior good License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (13), namely, A.R.S. § 32-1124 (B) (Proper display of license number and acronym “ROC”), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Respondent’s choice to fully comply with the terms of the Corrective Work Order issued in this matter and that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124B.. It is further recommended that if the Respondent utilizing a properly licensed contractor of the Respondent’s choice causes the proper accomplishment of the above described corrective action and provides satisfactory proof of compliance with the terms of A.R.S. § 32-1124 (B), on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification.

Done this day, February 18, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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