ALJDEC decisions subject to certification as final

2012A-1927-ROC · Registrar of Contractors · 2013-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2013 APPEARANCES: Complainants were represented by Dale Furnish, Esq. Respondent was represented by Craig Boates, Esq. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 34.267818-R to Daisy Mountain Painting Services LLC (“Respondent”). The Registrar received a Complaint against Respondent from Tony Brefeld and Kate Furnish (“Complainants”) alleging that Respondent failed to complete its contract with Complainants to paint their home and interior brick walls. Complainants requested a hearing. 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)(13), namely A.R.S. § 32-1158. Respondent filed a timely written answer to the Citation and Complaint, denying a statutory violation of A.R.S. § 32-1154(A)(1) and indicating it had remedied any violation of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32- 1158. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on February 11, 2013. Complainants presented the testimony of Kate Furnish. Respondent submitted three exhibits and presented the testimony of Casey Cottrell, its owner. Hearing Evidence On August 18, 2011, Respondent submitted a bid to Complainants to paint the exterior of their home. Listed as options on the bid were “A – Paint interior side of block wall to match body color – Labor and paint (Add) $285.00” and “B – Paint planters – (2) colors – Labor + Paint $190.00.” Prior to beginning the job, Complainants were required to select a color scheme approved by the Anthem Homeowners Association (HOA). Complainants first reviewed options at Respondent’s storefront. After being unable to decide, Mr. Cottrell drove Complainants around Anthem for approximately two hours showing them houses he had painted in Anthem with different color schemes. When Complainants were still unable to make a decision, Mr. Cottrell used digital imaging to show Complainants what their home would look like painted in different color schemes. On January 10, 2012, Ms. Furnish selected a color scheme and signed the bid to accept the contract indicating that she wished to add the options to the contract. The total contract price was $3,410.00. Complainants paid a deposit of $1,100.00. On January 23, 2012, Respondent began the job. On January 25, 2012, Ms. Furnish requested that the interior block wall be painted a different color. Ms. Furnish asked that the wall be painted in the existing color, which she indicated was originally intended to match the roof tiles. Ms. Furnish was informed that the HOA required the interior block wall be painted either the same color as the exterior of the house or a specific approved color. Ms. Furnish agreed to be responsible if the HOA cited her for a violation and required her to repaint the wall. Ms. Furnish initially indicated she had a sample of the paint used on the wall previously. When Ms. Furnish was unable to locate the sample, Ms. Furnish was provided paint swatches to select the wall color. Mr. Cottrell testified that he was unable to match the existing paint color because it had been on the wall for over ten years and had been impacted by the sun and weather to the point where the color, as it appeared on the wall, was no longer the color it had originally been painted. Mr. Cottrell stated that because Ms. Furnish was requesting a color not authorized by the HOA and due to the difficulty Complainants had deciding on a color scheme for the home initially, Mr. Cottrell did not feel comfortable selecting the color. By January 27, 2012, the only part of the job remaining was to paint the interior block wall and planters, but Ms. Furnish had not yet selected a color. Ms. Furnish was away from the home, but told Mr. Cottrell over the phone that he could use the color “Wheat Penny.” Mr. Cottrell refused to paint the wall until Ms. Furnish had personally selected and/or approved a color. After Ms. Furnish returned home, Respondent’s painting crew went with Ms. Furnish to Respondent’s storefront, but it was locked, so they went with her to the Sherman Williams store for her to select a color. Ms. Furnish was unable to select a color at the Sherman Williams store. Respondent’s painting crew was notified that Mr. Cottrell was at Respondent’s storefront, so they went back to look at more color choices there. At the storefront, Ms. Furnish was shown a sample of “Wheat Penny,” which she indicated was not the color she wanted. Ms. Furnish was given more paint swatches and was still unable to make a selection. Mr. Cottrell offered to remove the options from the contract and to have his crew return to paint the wall and planters when Ms. Furnish was able to select a color. Ms. Furnish elected to keep looking for an acceptable color. Mr. Cottrell instructed Respondent’s crew to return to the job site and finish any remaining details. After Respondent’s crew left, Mr. Cottrell became angry and frustrated with Ms. Furnish. Mr. Cottrell admitted that he yelled at Ms. Furnish in the presence of her four-year-old daughter and told her to “get the f--- out of my office.” Mr. Cottrell has since apologized for his language and behavior. Mr. Cottrell called Ms. Furnish numerous times throughout the day and the following day in an attempt to set up a time for a walkthrough. Ms. Furnish did not answer or return any of Mr. Cottrell’s calls. Mr. Cottrell’s messages were increasingly terse and included threats that he would bring the sheriff to Complainants’ home to collect the balance due, that he would spray the home with paint remover to nullify the job, and that he would put a lien on the home. Mr. Cottrell had his wife call Ms. Furnish in an attempt to “mediate” the situation, but Ms. Furnish did not respond to her call either. On January 28, 2012, Ms. Furnish sent Mr. Cottrell an email informing him that Complainants were firing Respondent and advising that any future communications should be directed to their attorney. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 1, 2013. Such prior License record reflects that Respondent’s License No. C-34.267818-R was current CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The contract entered into between Complainants and Respondent indicated that the interior block wall would be painted the same color as the exterior of the home. Ms. Furnish insisted on changing the wall color, but was unable to select a color. 4. Complainants argued that, as a professional painter, it was Respondent’s job to find a paint to match the existing wall color. However, given Complainants’ difficulty in deciding on the color scheme initially, the age and condition of the paint on the wall, and the fact that Complainants were requesting a paint color that was not approved by the HOA, it was reasonable for Respondent to require Complainants to select a color. 5. Because Complainants changed the terms of the contract and were unable to provide Respondent with a color to paint the wall, Complainants failed to establish that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1). 6. Respondent admitted in its written answer to the Citation and Complaint that its contract was not in compliance with A.R.S. § 32- 1158(B)(9). Respondent avowed it had since altered its form contract to comply with the requirements of the statute. Based on Respondent’s admission, the evidence established that Respondent violated A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Daisy Mountain Painting Services LLC’s License No. C-34.267818-R until it has provided to the Registrar, and the Registrar has accepted, evidence establishing that it has amended its form contract to comply with A.R.S. § 32-1158. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158, the Registrar should not suspend Respondent’s license but, instead, shall close Complainants Tony Brefeld and Kate Furnish’s Complaint in Case No. 2012-1927. 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, March 1, 2013.

/s/ Tammy L. Eigenheer 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