ALJDEC decisions subject to certification as final

2010A-308473497-ROC · Registrar of Contractors · 2011-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2011

APPEARANCES: Complainant appeared on her own behalf and was represented by attorney Gary Smith; Respondent was represented by sole proprietor James Brown.

WITNESSES: Randy Cason, ROC Inspector Cheri Canales Jim Brown

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits C1 through C6 submitted by Complainant, and testimony from the witnesses above at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent must perform corrective work or have his license suspended.

FINDINGS OF FACT 1. Respondent is the holder of license C-34.101344-R, a specialty residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform painting and wall covering work for residential projects. Jim Brown is Respondent’s sole proprietor. 2. Complainant hired Respondent to paint the exterior of her house in March 2010. Respondent performed the work and Complainant paid for it in full. Complainant filed a complaint about the condition of Respondent’s work in June 2010. ROC Inspector Randy Cason performed a jobsite inspection and issued a Corrective Work Order (“CWO”) on June 25, 2010. 3. The CWO ordered Respondent to correct paint overspray in various areas around the home. Inspector Cason found that Respondent had not properly painted the overhangs and had missed areas around the home. In addition, he found that the paint was bubbling and cracking around the entire house. Respondent was ordered to correct those problems. 4. Respondent performed some of the corrective work. He painted the areas that were missed. He did not, however, correct the bubbling, cracking, and peeling paint around the entire house, as evidenced by Exhibit 6, which is a group of photographs showing the poor condition of the paint. 5. Complainant herself repainted her eaves and overhangs. They no longer need corrective work. However, Inspector Cason testified at the hearing that he had inspected the home on July 5, 2011 and found that paint continues to peel all around the home. 6. This tribunal finds Inspector Cason’s testimony to be credible and supported by the evidence. Therefore, the evidence shows that corrective work is necessary all around the home. Because the corrective work is so extensive, this tribunal finds that most exterior surfaces need to be repainted and that therefore, the house needs to be completely repainted except for a few areas identified by Complainant at the hearing.[1] 7. Respondent testified that he is not responsible for the condition of the paint because it was peeling due to the prior paint underneath his paint. He testified that he prepared the painting surface by power washing and noticed a large amount of the prior paint coming off the house. His testimony shows that he perceived a problem with the prior paint, but went ahead and painted over it anyway. He testified that he is only willing to do “touch up” painting. He has refused to repaint the entire house because he does not believe he is responsible for the poor condition of the prior paint, which he believes is the cause of the bubbling, cracking, and peeling. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9- 108.[5] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. The evidence shows violation of those provisions. 3. Respondent’s denial of responsibility is rejected. He accepted the surface upon which he put his paint, and is responsible for the proper preparation of that surface. If more extensive preparation was needed, he should have brought it to Complainant’s attention at the time and worked out a solution. 4. As noted, the entire exterior of the home needs re-painting, except for a few areas that Complainant has identified as being fine. 5. A review of Respondent’s license status shows that the license is current and has been in good standing, with no disciplinary actions, since 1994. This is a very good license history. 6. The appropriate sanction in this matter is to allow Respondent to perform the corrective work, meaning repaint the entire house. If Respondent does not do so in a timely manner, the license should be suspended. A civil penalty for failure to comply with the CWO is warranted in an amount of $150.00. RECOMMENDED ORDER IT IS RECOMMENDED that license C-34.101344-R, held by James Dewi Brown dba New World Painting, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Complainant’s home has been repainted and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-[number redacted] shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanction provided above, James Dewi Brown dba New World Painting pay a civil penalty of $150.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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, July 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Testimony showed that the storm door has been corrected by Respondent and that the eaves and overhangs were repainted by Complainant. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] There are also other citations that were not addressed by the evidence presented at hearing.

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