ALJDEC decisions subject to certification as final

2012A-2434-ROC · Registrar of Contractors · 2012-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2012, at 8:00 a.m. APPEARANCES: Complainants Barbara and Jon Gile appeared on their own behalf; Respondent Peters Painting LLC appeared through Paulette Peters, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. C-34.231874-R to Peters Painting LLC (“Respondent”). Paulette Peters is the qualifying party, member, and the only person listed on Respondent’s license. 2. On or about May 9, 2012, the Registrar received a Complaint from Barbara and Jon Gile (“Complainants”) alleging six specific complaints about Respondent’s performance of a contract to paint the ceilings of their house at 17923 West Ocotillo Road in Waddell, Arizona. According to the Complaint, the parties’ contract was verbal, the amount of the contract was $600.00, Complainants had not paid Respondent any money for its work, and Respondent had last performed work on the project on May 7, 2012. The Complaint asked the Registrar to require Respondent to “pay to repaint the unmatched 2” to 3” ring of paint on the walls.” 3. The Registrar’s assigned inspector, Scott Deering, performed a jobsite inspection. Inspector Deering issued a Corrective Work Order (“CWO”) that required Respondent to take corrective action with respect to two of the six items of complaint within fifteen calendar days, in relevant part as follows: Complaint # 1- There is a 2” to 3” of paint on all walls that does not match. Contractor to correct the mis-match of paint on the walls at the ceiling line by the appropriate means.

Complaint # 2- The closets and pantry ceilings did not get painted. The scope of work of the contract was verbal. Inspector cannot verify the closets and pantry ceilings were included.

Complaint # 3- The work was not completed. Bathroom fan covers etc. were not put back. Corrected by the Complainant prior to the jobsite inspection. No action required by the Contractor.

Complaint # 4- Carpet padding in back bedroom is ripped in several places. The worst being a 3” hole in the room and a 5” hole in the closet. Corrected by the Complainant prior to the jobsite inspection. No action required by the Contractor.

Complaint # 5- There is paint drippings all over the walls, mirrors, countertops and carpet padding. At the time of the jobsite inspection the Complainant had corrected most of the areas, the two remaining issues were paint drips on the Master bedroom door and paint on the Master Bathroom countertop splash. Contractor to correct by the appropriate means.

Complaint # 6- There was no caulk put down around the ceilings in the entire house. No action required by the Contractor.

4. On or about June 4, 2012, the Registrar received a letter from Ms. Peters that was dated May 31, 2012, on Respondent’s behalf that stated as follows: This letter is in response to complaint #1. Due to the volatile nature of Mr. Gile on May 7, 2012, I will not correct the said issue. I do not feel this is a safe work environment for me or my workers.

5. After Complainants requested a hearing because Respondent had made no effort to comply with the CWO, the Registrar issued a Citation and Complaint against Respondent charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, and A.R.S. § 32- 1154(A)(23). 6. Ms. Peters filed a timely written answer to the Citation and Complaint on Respondent’s behalf, denying any statutory violations. Ms. Peters acknowledged that Respondent’s crew had painted the top of the walls through a miscommunication and affirmatively alleged that Respondent could not match the paint on the walls due to its age. Ms. Peters also affirmatively alleged that Mr. Gile’s “verbal assault” justified Respondent in not performing cleanup or correcting its mistakes on the job. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing. A hearing was held on November 13, 2012. 8. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 20, 2012. Such prior License record reflects that Respondent’s license was current and one complaint was pending. Hearing Evidence 9. Complainants acquired their house from a family member who had experienced setbacks. The ceilings in the house had been painted with both glossy and flat paint. Complainants entered into a verbal contract with Respondent for it to paint the ceilings in their house with a flat white paint for $600.00 or $625.00.[1] 10. On or about May 7, 2012, Ms. Peters arrived at Complainant’s house with two of Respondent’s employees to perform the verbal contract. Ms. Peters instructed the employees not to paint the walls of Complainants’ house. 11. Through a miscommunication, the employees painted the walls in the house 2” or 3” down from the ceilings. After the mistake was called to the employees’ attention, Respondent’s crew repainted the top of the walls to attempt to match the rest of the walls. 12. The master bedroom and bathroom and two other bedrooms at Complainants’ house have custom paint on the wall. Respondent’s crew used extra paint that was available to cover the top of the walls. Inspector Deering’s report of his jobsite inspection noted that the paint on the top of the walls in the colored rooms matched the paint on the rest of the walls. At the hearing, Complainants agreed with Inspector Deering’s assessment. 13. The living room-family room, kitchen, hallway, and two west bedrooms at Complainants’ house are painted white. Although Respondent attempted to match the white paint on the walls, its repairs of the paint at the top of the walls in these rooms were clearly visible. Inspector Deering’s jobsite inspection notes indicate that CWO Item #1 required Respondent to correct the mismatched paint on the walls of the living room-family room, kitchen, hallway, and two west bedrooms at Complainants’ house. Complainants confirmed at the hearing that only the white rooms required further correction. 14. Mrs. Gile testified that Mr. Gile became frustrated at Respondent’s crew’s failure to correct the mismatched paint in the white rooms. Mrs. Gile denied that her husband ever screamed at Ms. Peters but acknowledged that Mr. Gile spoke to Ms. Peters in a “louder voice.” 15. Ms. Peters testified that Mr. Gile screamed at her and Respondent’s two employees. Ms. Peters testified that because she did not know what to do after Mr. Gile’s “verbal assault,” she instructed Respondent’s employees to leave and not return to Complainants’ house. Ms. Peters testified that she had to pay her workers, even though Complainants have not paid Respondent anything for the job. 16. Ms. Peters testified that she is a single woman in a male-dominated profession and that Mr. Gile’s “verbal assault” caused her to fear for her own and Respondent’s employees’ safety. Ms. Peters testified that she reported the “verbal assault” to two detectives. 17. There is no evidence that any police agency ever investigated Mr. Gile’s alleged “verbal assault” on Ms. Peters and Respondent’s employees. There is no evidence that any criminal charges were ever filed against Mr. Gile due to the incident. 18. Complainants did not submit any evidence to establish that Respondent violated any statute by failing to correct the paint drips (CWO Item #5) or any of the other items of the Complaint, other than CWO Item #1. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A).[2] 2. Complainants bear the burden of proof to establish that Respondent violated the charged subsections of A.R.S. § 32-1154(A) by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 4. Complainants established that due to a miscommunication, Respondent’s workers painted flat white paint 2” or 3” down from the ceilings in the living room-family room, kitchen, hallway, and two west bedrooms at Complainants’ house. Therefore, Complainants established that Respondent failed to perform its work in a professional and workmanlike manner, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[6] 5. Ms. Peters acknowledged that Respondent did not comply with the CWO by repairing the paint at the top of the walls to match the paint on the walls of the white rooms in Complainants’ house. Complainants’ alleged failure to provide reasonable access for Respondent to perform repairs to comply with the CWO is an affirmative defense that Respondent bears the burden to prove. 6. Ms. Peters testified that Mr. Gile screamed at her and Respondent’s employees when they failed to correct the mismatched paint on the walls of the white rooms in Complainants’ house and that Mr. Gile’s “verbal assault” caused her to fear for her own and her employees’ safety. A property owner’s failure to provide reasonable access may provide valid justification for a contractor’s failure to comply with a CWO under A.R.S. § 32-1154(A)(23).[7] Ms. Peters did not allege that Mr. Gile threatened to physically harm Ms. Peters or Respondent’s employees[8] or that he screamed at them on more than one occasion. Ms. Peters never informed the Registrar or Complainants that if Mr. Gile agreed to refrain from screaming at Ms. Peters and Respondent’s employees, Respondent would comply with the CWO. Instead, Ms. Peters simply announced that Respondent would make no effort to comply with the CWO. 7. Even one incident of a homeowner screaming at a contractor reflects poorly on the homeowner and repeated verbal abuse by a homeowner may constitute denial of reasonable access. However, a single incident of bad behavior by a property owner generally does not provide a legal excuse or justification for a contractor’s failure to complete the project or to comply with the Registrar’s directive. Under the circumstances of this case, Respondent did not establish that Ms. Peters’ fear of injury was reasonable or that Complainants denied reasonable access to Respondent to comply with the CWO. Therefore, Complainants established that Respondent abandoned the project by failing to complete it, in violation of A.R.S. § 32-1154(A)(1),[9] and failed to take appropriate corrective action to comply with the Registrar’s written directive, in violation of A.R.S. § 32- 1154(A)(23). 8. A.R.S. § 32-1158 requires contracts between property owners and contractors in an amount of $1,000.00 or more to be in writing and to include certain minimum terms. Because the parties’ verbal contract was only in the amount of $600.00 or $625.00, Complainants did not establish that Respondent violated A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158.[10] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Registrar suspend Respondent Peters Painting LLC’s License No. C-34.231874-R until it has corrected CWO Item #1 in a professional and workmanlike manner. It is further recommended that Complainants Barbara and Jon Gile’s Complaint in Case No. 2012-2434 be closed if on or before the effective date of the Registrar’s Order, Respondent has provided written proof, and the Registrar accepts such proof, of either one of the following: 1) Respondent has corrected in a professional and workmanlike manner CWO Item #1; or 2) Either of the Complainants has screamed at Ms. Peters or Respondent’s employees when they attempted to correct CWO #1, thereby denying Respondent reasonable access to perform repairs.[11] It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, effective on such 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 Respondent tenders payment of any outstanding prior civil penalty. 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, November 20, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Although Complainants stated in the Complaint that the verbal contract was in the amount of $600.00, Complainants attached to their Complaint a written estimate on Respondent’s letterhead in the amount of $625.00. [2] See A.R.S. §§ 32-1151 to 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] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [7] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” (Emphasis added.) [8] Assault is defined as follows: The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. Black’s Law Dictionary, supra, at 122. According to A.R.S. § 13-1203(A), a person commits the crime of assault by: 1. Intentionally, knowingly or recklessly causing any physical injury to another person; or 2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or 3. Knowingly touching another person with the intent to injure, insult or provoke such person. [9] 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.” [10] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” The specific statute charged, A.R.S. § 32-1158(B), provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . . [11] Ms. Peters may take a tape recorder Respondent attempts to perform corrective action. If Mr. Gile again verbally abuses Ms. Peters and Respondent’s employees, Respondent may submit the tape recording to the Registrar as evidence.

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