ALJDEC decisions subject to certification as final

2014A-1532-ROC · Registrar of Contractors · 2015-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 15, 2015, at 8:00 a.m. APPEARANCES: Judy Kay Caldwell (hereinafter “Complainant” or “Ms. Caldwell”) appeared on her own behalf. Jeffrey Joseph Dobrolecki dba Kachina Painting & More, License No. CR-34.286047-D, (hereinafter “Respondent” or “Mr. Dobrolecki”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3), and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent is the holder of License No. CR-34.286047-D issued by the Registrar. Respondent’s License was suspended for nonrenewal on September 1, 2015. This is a residential matter in which on or about March 20, 2014, Complainant contracted with Respondent for the painting of her residence at 8135 N. Placita SurOeste, Tucson, Arizona (hereinafter the “residence”). Complainant was dissatisfied with Respondent’s workmanship on her residence and filed a Complaint against Respondent with the Registrar on March 18, 2014. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On September 25, 2014, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Jobsite found one area above back porch door that had overspray matching new wall paint. Contractor to correct by appropriate means.

No corrective work was performed on Complainant’s residence. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s license. On June 30, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

The assigned Registrar Investigator, Frank Grochocki (hereinafter “Investigator Grochocki”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Grochocki stated that there was no compliance inspection or prehearing inspection because no corrective work had been performed on Complainant’s residence. Investigator Grochocki testified that that during his onsite inspection he observed one area above back porch door that had overspray matching new wall paint. Investigator Grochocki stated that the paint overspray failed to comply with applicable workmanship standards. Investigator Grochocki’s Investigation Report provided that he also addressed Complainant’s complaint of “you can see old paint through new and missed areas.” Investigator Grochocki found the paint coverage application to be within standards. Investigator Grochocki testified that he also saw several areas of overspray that were of a different color than applied by the Respondent. Investigator Grochocki said that Respondent was not responsible for the different colored overspray. Investigator Grochocki’s testimony is found to be credible. Ms. Caldwell testified that her primary complaint was that the old paint on her residence was bleeding through the new paint. Ms. Caldwell said that she wants her house to be repainted. Ms. Caldwell said that she was not present at Investigator Grochocki’s onsite inspection. Ms. Caldwell said that her son was there and that her son failed to show the Investigator all of the areas of the painting on her residence that she was dissatisfied with. Ms. Caldwell said that she was not happy with the job and that she was dissatisfied with the complaint process. Ms. Caldwell acknowledged that her family responsibilities had prevented her from being at her residence at an agreed time. Mr. Dobrolecki testified that he had been a contractor for 28 years. Mr. Dobrolecki stated that Complainant was not present for the onsite inspection and that he felt the Complaint should have been dismissed at that time. Mr. Dobrolecki said that there was no paint bleed-through on Complainant’s residence. Mr. Dobrolecki said that he does not know how the paint overspray could have happened. Mr. Dobrolecki acknowledged that the color of the overspray is the same color as the paint applied to the exterior of Complainant’s residence. Mr. Dobrolecki testified that he had arranged a date and time to perform the corrective work set forth in the written Directive. Mr. Dobrolecki stated that Complainant failed to appear at the residence at the appointed time and that he was unable to perform the directed corrective work on Complainant’s residence. Mr. Dobrolecki asserted that Complainant’s presence was required for the touch-up work on the exterior of Complainant’s residence. Mr. Dobrolecki asserted that the Complaint should be dismissed for Complainant’s failure to appear at the agreed upon time for the performance of the corrective work. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The suspended status of Respondent’s License does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint. See A.R.S. § 32-1154(C). The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 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). Complainant established by a preponderance of the evidence that there is one area above her back porch door that had overspray matching new wall paint applied by Respondent. Complainant established by a preponderance of the evidence that Respondent failed to comply with the Registrar’s written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. CR-34.286047-D of Respondent shall be suspended for five (5) days. It is further recommended that Respondent pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s licenses 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 payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. Done this day, December 15, 2015. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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