ALJDEC decisions subject to certification as final

2012A-6168-ROC · Registrar of Contractors · 2013-11-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 7, 2013 APPEARANCES: Complainant appeared on her own behalf. Respondent was represented by Jennifer Peddy Berg, Esq. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 34.221868-R to Ameri Pro Of Gilbert LLC (“Respondent”). On September 7, 2012, the Registrar received a Complaint against Respondent from Cheryl Van Meter (“Complainant”) regarding issues with her shade trellis that she alleged was damaged by Respondent while painting the house. After the Registrar assigned the Complaint to its inspector, Ted Gerold, for investigation, he performed a jobsite inspection. The Corrective Work Order issued on January 10, 2013, which included the following: The rear patio metal trellis has rusted again. The rusted areas include the first 4 panels starting left to right as well as the angled panel at the opposite end of patio. Contractor to repaint and include if necessary, any other areas that are rusting.

Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any violations. 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 7, 2013. Inspector Gerold testified in support of his Corrective Work Order. Complainant testified on her own behalf and presented the testimony of Robert Winkelbauer, an officer of Crest Renovations Inc, License No. KB-2.153951-D. Respondent submitted eight exhibits and presented the testimony of Tim Rochford, its Qualifying Party. Hearing Evidence On or about June 22, 2010, Complainant entered into a contract with Respondent to paint her home. Included in the painting project was that Respondent would paint a metal mesh shade trellis attached to the home. The shade trellis had been installed on the home in 2011 and Complainant had never experienced any issues with rusting of the panels. During the process of preparing the shade trellis for painting, the entire structure separated from the home and crashed to the patio. The shade trellis was set against Complainant’s wall in the backyard. Complainant understood that Respondent would arrange for the reinstallation of the shade trellis, while Respondent understood that Complainant would arrange for the reinstallation. Due to the miscommunication, the shade trellis sat in Complainant’s backyard for a period of approximately nine months. When Complainant contacted Respondent regarding the failure to reinstall the shade trellis, Respondent contacted a company to arrange for the reinstallation. Respondent then primed and painted the shade trellis. After the shade trellis had been reinstalled, primed, and painted, Complainant observed rust on two of the panels. Concerned that part of the problem may be too many layers of paint that narrowed the openings in the mesh screen, Respondent arranged for a company to remove some paint layers. Once the paint layers were removed, Respondent primed and painted the panels. In December 2011, Complainant filed a complaint with the Registrar because she had observed more rust on the shade trellis. That complaint was assigned case number 2011-6765 by the Registrar. After a Corrective Work Order had been issued in case number 2011-6765, Respondent removed the panels and arranged for a company to replace the metal mesh on the two panels that exhibited rust. After the mesh was replaced, Respondent prepped, primed, painted, and reinstalled the two panels. Complainant then observed more rust on the two panels. Respondent removed the two panels and arranged for a company to powder coat them. After reinstalling the panels, Respondent presented Complainant with a purported waiver to sign. The document provided: Ameripro of Gilbert has applied the color to the metal awning, mesh & frame, in the method the customer, Cheryl Van Meter, has specified. The metal surfaces have been powder coated in the color specified. All metal pieces that were powder coated have been installed to the customers [sic] satisfaction. Ameripro of Gilbert is released from liability on work performed on the metal awning.

Exhibit D. Complainant signed the undated document. Complainant indicated she believed it was only a waiver indicating that Respondent had applied the proper color of paint in a method that she approved. Complainant then filed the instant Complaint with the Registrar. This complaint was assigned case number 2012-6168 by the Registrar. After the Corrective Work Order in case number 2012-6168 was issued on January 10, 2013, Respondent removed the two panels in question to do additional work in an attempt to resolve the issue. After Respondent examined the panels, it determined the rust apparent on the surface was not coming through the paint, but was rust staining surface of the paint and could be wiped off. Respondent requested that Inspector Gerold examine the panels again in light of its discovery. In March 2013, when Inspector Gerold examined the panels, he observed that the rust on the panels could be wiped off and did not appear to be coming through the paint. Because the rust was not coming through the paint, Inspector Gerold was unable to definitively identify the source of the rust. Therefore, Inspector Gerold indicated the recurring rust appeared to be a homeowner maintenance issue. After Respondent returned the panels in March 2013, Complainant did not immediately replace the panels. When Mr. Winkelbauer, offered to help Complainant move the panels, he observed rust on the back side of the panels, which would be the top of the panels when installed, that appeared to originate from the nuts, bolts, and clips used to hold the metal mesh to the frame. Mr. Winkelbauer believed that the nuts, bolts, and clips had not been properly sealed during the painting and powder coating process, which allowed water to cause the parts to rust. Respondent argued at hearing that the appearance of the stains, looking like drops on the metal mesh, could not have occurred as Mr. Winkelbauer proposed. Rather, Respondent posited that the “drops” may have sprayed up onto the metal mesh from the mister system or from some other source of water. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 25, 2013. Such prior License record reflects that Respondent’s License No. C-34.221868-R was current. Such prior License record also reflects that there were no prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears 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 undisputed credible testimony established that Complainant did not have any issues with rust appearing on the two panels of the shade trellis prior to Respondent beginning the project and the resulting fall of the shade trellis. While it is noted that Respondent had taken numerous steps in an attempt to resolve the issue to Complainant’s satisfaction, if Respondent caused the damage to the panels, it had a responsibility to repair the damage. 4. The Administrative Law Judge finds the testimony of Mr. Winklebauer to be supported by the evidence in that it appears from the exhibits that the “drops” on the metal mesh panels most likely occurred when rusty water from the nuts, bolts, and clips pooled on top of the panels and left behind the rust residue as it eventually dripped through the holes in the panel. 5. The Administrative Law Judge concludes that it is more probably true than not that Respondent’s actions caused the rust stains to appear on the shade trellis. Therefore, Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 6. Respondent attempted to comply with the Corrective Work Order that was issued and was informed by Inspector Gerold that it was not required to do so because the source of the rust could not be identified. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(23).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Ameri Pro Of Gilbert LLC’s License No. C-34.221868-R until it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform. 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 performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainants’ Complaint in Case No. 2012-6168. 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 27, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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.” [2] 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.”

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