ALJDEC decisions subject to certification as final

2014A-2752-ROC · Registrar of Contractors · 2015-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 19, 2015 APPEARANCES: Complainant Dorothy Greene appeared on her own behalf. Respondent Action Painting LLC was represented by Shawn Nelson. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. 238261 to Action Painting LLC (“Respondent”). On or about February 2, 2014, Dorothy Greene (“Complainant”) entered into a contract with Respondent for an interior painting project at Complainant’s home at 18815 N. 169th Avenue, Goodyear, Arizona. The total contract price was $1,532.94. On or about April 2, 2014, Respondent began working on the project. After a couple days of work, Respondent completed the project. On April 4, 2014, Complainant wrote a check for the entire amount due. After a brief time, Complainant was unhappy with the work and reported that the red paint used in the laundry room was blotchy. On or about April 11, 2014, Complainant stopped payment on the check. Jeffrey Mullen, Owner of Respondent, performed a walkthrough with Complainant during which time he agreed that the red walls were blotchy and some of the lines needed to be recut. Mr. Mullen testified that it is difficult to achieve neat cut lines on a textured wall. Mr. Mullen stated that dark colors often need more than one coat of paint. Respondent sent a new crew to Complainant’s home to touch-up the paint. Complainant had thrown away the extra paint that Respondent had left behind from the first work that was done. Complainant testified that the paint was dried and not usable, so she threw it away. Mr. Mullen testified that, even if the paint was not suitable for painting, it could be used to match the paint color. As it was, Respondent was required to buy new paint and repaint the entire project. The crew spent two or three days performing the follow-up work that, according to Mr. Mullen, should have taken two or three hours. After the new crew finished painting, Complainant told Mr. Mullen that she was impressed with the workers and the job they did. After the follow-up work was done, Respondent requested payment for the project. Complainant said she would send payment, but then failed to do so. Eventually, Mr. Mullen left a voicemail for Complainant indicating that Respondent would pursue legal action if she failed to pay. On or about May 13, 2014, after receiving the voicemail, Complainant sent a check for $1,250.00 and included a list of complaints that she had not mentioned previously. The list included the following: • The originals painters you sent did not use Dunn Edwards’s paints as stated in your contract (this was verified b y the 3rd set of painters you sent to my house. • The first crew did an awful job: • The Refrigerator had red paint on it • The lines throughout the house were not professionally done • Paint were spilled on the carpet in the office, the hall way, laundry room, on the carpet leading up stairs, the dryer and the bathroom • The formal dining room table glass is missing plastic suction cup to hold the glass on top • Broken blinds • My paint stick, drop cloth along with my paint was used • Broken coffee pot, brand new used one time • Broken table (bench) leg on the table in the kitchen (brand new) • On Saturday May 12, 2014 I requested that you not send the same painter • You did send out another crew. This crew were excellent and had to try and fix the paint discrepancy made by the formal crew, • Broken book case • On Monday a different crew came, I refused services. I asked what happened to him, I was told you sent him on a different job. I was not happy about that. I told them to leave. • Troy Jackson phones you and asked what happen? You replied his son was sick. • I requested that you come to the house to look at the imperfections of your crew. • You made millions of excuses for them. Totally unsatisfactory! When you used the term” What every”, as a professional, you should be careful of what comes out of your mouth. • Paint water was dumped on the backyard instead of dumping it down the drain on the outside of the house • I informed you that my items had been used • My baseboard are not completed from the paint that bleed through the tape • I became ill free all the fumes

Exhibit D (all errors in original). On or about July 9, 2014, Complainant filed a complaint with the Registrar alleging poor work by Respondent. Complainant did not complete the entire complaint and on or about September 30, 2014, the Registrar returned it to her for further information. Complainant completed the complaint form and resubmitted the document. After the Registrar assigned the Complaint to its investigator, Stephen Lawton, for investigation, he performed a jobsite inspection. Respondent was not permitted to attend the jobsite inspection. The Directive from the Registrar issued on February 5, 2015, included the following: 1. Paint on floor of the laundry room and the paint near the ceiling line not cut in tight to the ceiling line. Correct By Appropriate Means. 2. Broken electrical face plate in library. Correct By Appropriate Means. 3. Paint on the floor behind the wall unit system in the library. Correct By Appropriate Means. 4. Wall paint does not meet ceiling line in front room. Correct By Appropriate Means. 5. Paint on clean out covers in the kichen and laudry room. Also water box in laundry room has paint on it. Correct By Appropriate Means. 6. Paint on trim of cabinet above the refrigerator. Correct By Appropriate Means.

The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22). Investigator Lawton testified that at the time of the inspection, he observed the items identified in the Directive. Investigator Lawton also testified that he performed a prehearing jobsite inspection the morning of the hearing at which time he observed the corrective work had not been performed. At hearing, Complainant testified that explained to Respondent exactly what she wanted and that she always made sure they knew her expectations. Complainant denied asked the crew to paint the clean out covers. Complainant also focused on the fact that Respondent allegedly used her paint stick and drop cloth during the project. Complainant did not assert that the items were damaged or no longer useable. Complainant stated that the first crew left paint marks throughout the home including on the floor, baseboards, and a smear across her refrigerator. Complainant stated the photos she submitted showing paint marks and damage were taken immediately after the first crew left. Complainant acknowledged that she painted areas of her home and that the builder had done some painting in the residence after Respondent completed their work. Mr. Mullen testified that Complainant micro-managed the project and directed the work of the crew at all times. Mr. Mullen stated that the crew would not have painted the clean out covers unless Complainant asked that they be painted. Mr. Mullen also asserted that the cut lines were done at the direction of Complainant and were to her satisfaction. Mr. Mullen stated that after the crew completely redid the project, he performed a walkthrough with Complainant, at which time she had no complaints and stated she was fully satisfied with the work performed. Mr. Mullen indicated that Respondent was not allowed to attend the jobsite inspection. Mr. Mullen testified that Respondent did not attempt to comply with the Directive because he did not believe Respondent was responsible for any of the issues raised in the Directive based on Complainant’s directions and approval of the project. Mr. Mullen also stated that Investigator Lawton was involved in a prior complaint against Respondent in which Respondent had prevailed and that Investigator Lawton may have a grudge as a result. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on December 8, 2015. Such prior License record reflects that Respondent’s license is current with one open complaint. 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 evidence at hearing established that Complainant accepted and was very satisfied by the work performed by Respondent when the job was completed. Complainant did not raise any complaints regarding the project until payment was requested and Respondent suggested it may pursue legal action. Complainant also acknowledged that other parties performed painting in the residence after Respondent completed the work. Therefore, Complainant failed to establish that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3).[1] 4. While Respondent did not make any attempt to comply with the Directive, the failure to do so was justified by the conclusion of law above. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Dorothy Greene. 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 9, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] A.R.S. § 32-1154(A)(22) 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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