ALJDEC decisions subject to certification as final

2012A-1275-ROC · Registrar of Contractors · 2012-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 19, 2012, at 8:00 a.m. APPEARANCES: Complainant Quatros III Council Co-Owners Homeowners Association appeared through Virginia Gavette, its President; Respondent Jerry Kenneth Moore dba Moore For Less Painting was represented by Adam J. Wintz, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. K-34.248448-D for painting to Jerry Kenneth Moore dba Moore For Less Painting (“Respondent”). 2. Quatros III Council Co-Owners Homeowners Association (“Complainant”) is comprised of the owners of 72 condominiums located in 19 buildings at or near 2133 West Turney Avenue in Phoenix, Arizona. On or about March 8, 2012, Complainant’s attorney, Joshua M. Bolen of the firm Carpenter, Hazlewood, Delgado & Wood, PLC, filed a Complaint against Respondent with the Registrar. The Complaint alleged that Respondent had poorly performed its May 22, 2011 contract to “Paint the Community and replace rotten facia [sic] board where necessary” and that as a result, Complainant had to hire a second contractor to repair and complete Respondent’s poor work. According to the Complaint, Complainant paid Respondent $5,941.30 on a contract in the amount of $11,882.60. To resolve the Complaint, Mr. Bolen requested that the Registrar require Respondent to pay Complainant $2,238.61 to reimburse Complainant for the money that it paid to the second contractor. 3. Mr. Bolen attached several documents to Complainant’s Complaint, including the following: (1) An undated demand letter from Respondent’s attorney, Adam J. Wintz, claiming that Complainant owed Respondent at least $46,000.00 in civil damages under various common-law theories and threatening to file a civil lawsuit against Complainant; (2) Respondent’s proposal dated April 19, 2011, in the amount of $11,882.60, to paint the 19 buildings, scrape, caulk, and prime fascia, and to replace fascia that was dry-rotted, as necessary, that was signed by Complainant’s president, Virginia Gavette[1]; (3) Respondent’s proposal dated May 22, 2011, for replacing soffits and replacing additional fascia on a time-and-material basis; (4) Mr. Bolen’s July 1, 2011 response to Mr. Wintz’s demand letter, denying that Complainant owed Respondent any money, alleging that Respondent breached its contract with Complainant, and requesting that Respondent produce receipts to show that its expenses exceeded $6,000.00; and (5) Mr. Wintz’s August 15, 2011 response to Mr. Bolen’s July 1, 2011 letter, providing numerous receipts, claiming that Respondent had incurred $7,504.02 in costs to perform its work at Complainant’s project, and demanding $6,500.00 to settle the claim. 4. On or about March 13, 2012, the Registrar sent a letter to Respondent stating that the Registrar had information that Respondent was performing or offering to perform work that was beyond the scope of its K-34 license when it contracted to replace the wood fascia at Complainant’s condominium complex and that replacement of wood fascia required a K-61 license. 5. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(17). 6. Respondent filed a timely written answer to the Citation and Complaint denying any statutory violations and affirmatively alleging that Complainant breached the parties’ contract and that the Complaint was “nothing more than an improper retaliatory action and is an abuse of process.” Respondent also asserted a counterclaim for the unpaid contract amount of $5,941.30. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. A hearing was held on November 19, 2012. Because Mr. Bolen was unable to attend, Complainant appeared through Ms. Gavette. Complainant presented the testimony of Ms. Gavette and Osia Jack, Complainant’s vice president, and submitted one exhibit. Respondent testified on his own behalf, presented the testimony of his employees, Tony Austin and John Peckinpaugh, and submitted thirteen exhibits. Hearing Evidence 9. Ms. Gavette lives onsite and was responsible for overseeing substantial improvements to Complainant’s property, including exterior painting, replacement of fascia, and roofing. Ms. Gavette testified that Respondent’s crew performed their work slowly because Respondent’s crew did not show up regularly. 10. Ms. Gavette testified that on May 19, 2011, at 12:00 p.m. or 1:00 p.m., Respondent’s crew used excessive amounts of spackle or caulking to repair fascia that should have been replaced. Ms. Gavette testified that Complainant’s treasurer, Bob Fijal, terminated Respondent’s contract and that Complainant later hired another contractor to repair and complete Respondent’s work. 11. Respondent testified that repairing weathered fascia with caulking rather than replacing the fascia achieves a good result and saves the customer money. Respondent testified that he has been repairing fascia in that manner for 40 or 50 years and that his repairs make the fascia look brand new. 12. Respondent testified that his work was complicated by Ms. Gavette having scheduled the roofers to perform their work after Respondent completed painting Complainant’s buildings. Respondent testified that painters usually follow roofers because tar from the roof construction may mar the paint finish. Respondent also testified that Ms. Gavette and Mr. Fijal continually harassed Respondent’s crew while they attempted to perform the contract. 13. Respondent testified that he, Mr. Austin, and Mr. Peckinpaugh performed their work in a professional and workmanlike manner. Respondent testified that Mr. Fijal ordered Respondent to replace the entire 18’ or 20’ length of fascia and certain soffits on some buildings, even though the April 19, 2011 contract only required Respondent to replace the fascia as necessary. Respondent testified that because the additional work that Mr. Fijal required was beyond the scope of the April 19, 2011 contract, Respondent prepared the May 22, 2011 addendum for the extra work. 14. Respondent testified that he was working on the condominium in which Ms. Gavette resides when Mr. Fijal told him to “get his stuff and get the f—k off the property.” Respondent testified that Mr. Fijal insisted that Respondent take his rented lift from Complainant’s property, even though he had no secure place to store the lift. Respondent testified that he later viewed Complainant’s property from a public road and saw other contractors performing work to complete his contract. 15. Mr. Austin testified that he has 37 years’ experience in construction and that he installed the fascia at Complainant’s project. Although Mr. Austin does not possess at license, he asserted that he did not need a license because he worked under Respondent’s license. 16. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on December 4, 2012, Respondent’s License No. K-34.248448-D was current and one complaint was pending against the license. CONCLUSIONS OF LAW The Registrar has jurisdiction to determine whether Respondent violated the charged contracting statutes.[2] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] The Complaint that Mr. Bolen filed on Complainant’s behalf acknowledged and Ms. Gavette and Respondent both testified that Complainant had Respondent’s work completed and/or corrected by others before Mr. Bolen filed the Complaint with the Registrar. Complainant did not establish that any health or safety issue required immediate correction and completion of Respondent’s allegedly poor work. Because Complainant’s termination of Respondent’s contract provides a legal excuse for his failure to complete the contract, Complainant did not establish that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).[5] Because the legislature has not authorized the Registrar to adjudicate or to award money damages,[6] the parties must resolve their various common- law claims against each other in a court of competent civil jurisdiction. The scope of Respondent’s license allows him to apply “materials common to the painting and decorating industry for protective or decorative purposes,” including surface preparation, caulking, sanding, and cleaning preparatory to painting, and to install “surface coverings such as vinyls, wall papers, and cloth fabrics; decorative texturing; taping and finishing of drywall in conjunction with surface painting only.”[7] “‘Knowingly’ imports only a knowledge that the facts exist that bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.”[8] “‘Notice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”[9] Because Respondent should have known that his K-34 license did not allow it to replace fascia, the record establishes that Respondent violated A.R.S. § 32- 1154(A)(17).[10] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Respondent Jerry Kenneth Moore dba Moore For Less Painting’s License No. K-34.248448-D be suspended until Respondent provides written proof that is satisfactory to the Registrar that Respondent has remedied his violation of A.R.S. § 32-1154(A)(17). It is further recommended that the Registrar not suspend Respondent’s license and, instead, close Complainant Quatros lll Council Co-Owners Homeowners Association’s complaint in Case No. 2012-1275 if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is satisfactory to the Registrar that he has not engaged in any contracting activities that were beyond the scope of his K-34 painting license since March 13, 2012, or that he has obtained another license that allows him to perform such work. It is further recommended that, in addition to any license suspension that may result from this matter, Respondent’s Class K-34 license be placed on disciplinary probation for a period of 90 days, commencing on the effective date of the Registrar’s order or the date on which Respondent files notice of compliance, whichever is later. 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 5, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] Ms. Gavette’s signature on the copy of the April 19, 2011 proposal that was submitted to the Registrar was too faint to be visible. However, Respondent showed his copy of the signed contract at the hearing that showed Ms. Gavette’s signature. Ms. Gavette did not deny having signed the proposal, although she stated that she could not see her signature because she is nearly blind. [2] See A.R.S. §§ 32-1151 to A.R.S. § 32-1169. [3] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [6] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [7] A.A.C. R4-9-102(B) (scope of commercial L-34 license); see also A.A.C. R4-9-103(A) (scope of residential C-34 license allows Respondent to perform “[s]urface preparation and application of materials common to the painting and decorating industry for protective and/or decorative purposes,” including wall coverings, except ceramic tile, and wallpaper); A.A.C. R4-9- 104(B) (scope of K-34 license “allows the scope of work permitted by the commercial L-34 Painting and Wallcovering and the residential C-34 Painting and Wallcovering licenses”). [8] A.R.S. § 1-215(17). [9] Maricopa Utilities Co. v. Cline, 60 Ariz. 209, 214, 134 P.2d 156 (1943) (quoting Schneider v. Henley, 61 Cal. App. 758, 763, 215 P. 1036, 1038 (1923)). [10] A.R.S. § 32-1154(A)(17) includes among the grounds for suspension, revocation, and other disciplinary action against a contractor’s license “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”

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