ALJDEC decisions subject to certification as final

2010A-308473375-ROC · Registrar of Contractors · 2011-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 26, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, David Thomas. 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’s Class B-3 (No. 203767) License was suspended by the Registrar of Contractors on March 9, 2011, for lack of bond. 2. This is a residential matter where pursuant to the terms of a written Hardship Assistance Contract furnished by the City of Phoenix, the Respondent contracted to paint the exterior of the Complainant’s residence. 3. The Complainant was dissatisfied with the Respondent’s workmanship and demanded that the Respondent properly correct its painting work to her satisfaction and properly replace the back bathroom door on her residence. 4. When the Respondent failed to comply with the Complainant’s demands, 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 onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: Complaint #1 – Paint is peeling off exterior of house. After inspecting the exterior of the house, this Inspector did not see any paint peeling off the exterior of the house. No action is required by the Respondent.

Complaint #2 – Cracks are appearing around the exterior of the house. This Inspector found that the caulking the Respondent used to fill in the joints between the exterior siding panels (pre- paint prep work) had shrunk and has caused the paint to crack in these areas, also along the tops of the exterior siding panels this same problem has occurred. The Respondent is to correct these areas by appropriate means.

Complaint #3 – Patch work (pre-paint prep work) is falling out. The Complainant had shown this Inspector two areas where the patch material is missing, one on the West side of the house the other on the East side of the house. This Inspector was not able to determine if the Respondent’s workmanship was the cause of this complaint item or if the problem was caused by something else.

Complaint #4 – The back bathroom door on the exterior was not replaced. After reviewing the contract specifications, the Respondent was not contracted to replace the exterior bathroom door. No action is required by the Respondent.

Complaint #5 – Paint is peeling off the front pony wall. After inspecting the front pony wall, this Inspector found that the paint has cracked and curled up along the top and side of the front pony wall. Did not see any paint peeling away from surface. The Respondent is to correct this complaint item by appropriate means.

7. The assigned Agency Inspector testified that he had performed a prehearing inspection on September 23, 2011, and that he believed that the Respondent had fully complied with the terms of the Corrective Work Order. 8. An employee of the City of Phoenix testified that he had inspected the Complainant’s residence and found the Respondent’s painting work to be satisfactory. 9. The Complainant asserts that the Respondent’s painting work fails to comply with applicable workmanship and industry standards and that the exterior painting work performed by the Respondent should be properly corrected to her satisfaction and the rear bathroom door replaced. 10. Credible testimony and evidence established that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter and that the Respondent’s construction work on the Complainant’s residence now complies with applicable workmanship and industry standards. 11. There was no credible evidence that the Respondent is responsible for the removal and replacement of the Complainant’s rear bathroom door or for the replacement of any damaged wood at the Complainant’s residence. 12. Notice is taken of the Respondent’s prior 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. The Citation and Complaint alleges violations of 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). 5. Credible testimony and evidence supported findings which establish that the Respondent has fully complied with the terms of the Corrective Work Order issued in this matter and has complied with the provisions of A.R.S. § 32-1154 (A) (23).. 6. Credible testimony and evidence established that the assigned Agency Inspector has inspected the Respondent’s corrective work on Complainant’s residence and that the Respondent’s painting work on the exterior of the Complainant’s residence now complies with the provisions of A.R.S. § 32- 1154 (A) (3), namely, A.A.C. rule R4-9-108. 7. There being no violation, this matter should be dismissed. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, September 26, 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