ALJDEC decisions subject to certification as final

2014A-4118-ROC · Registrar of Contractors · 2015-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 29, 2014. APPEARANCES: Registrar of Contractors was represented by Assistant Attorney General John Tellier. James Bailey, Qualifying Party, appeared on behalf of Respondent A E B, LLC DBA: One80 Painting. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. CR34.219251-D to A E B, LLC DBA: One80 Painting (“Respondent”). On or about August 6, 2012, Respondent entered into a contract with North Point Condominium Association (“North Point”) for exterior painting to be done in two phases. The contract price for the two phases totaled $37,218.41. North Point paid a total of $32,184.66 on the contract. After the work was completed, North Point was not satisfied with the work done. On or about May 6, 2013, Respondent voluntarily cancelled its license. On or about August 26, 2013, the Registrar received a Complaint against Respondent from North Point regarding the exterior painting Respondent was contracted to perform at the property. After the Registrar assigned the Complaint to its inspector, Mark Alyea, for investigation, he performed a jobsite inspection. The Corrective Work Order issued on October 29, 2013, included a long list of items that required correction by Respondent. 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). A representative of North Point testified that Respondent had not repaired any of the items identified in the Corrective Work Order. North Point had the contractor who was hired to complete the third phase of the project fix some of the more pressing matters that Respondent had not corrected. The contractor was paid by North Point to perform the additional work. James Bailey, Respondent’s Qualifying Party, asserted that Respondent was paid less than the full value of the contract by approximately $5,000.00 and it believed that the money it should have been paid was to be used to pay a different contractor to complete or repair the work identified in the Corrective Work Order. Mr. Bailey testified that, in his professional opinion, the $5,000.00 was more than sufficient to repair all of the work listed. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Respondent’s voluntarily cancelled license does not prevent the Registrar from determining the merits of the complaint and imposing discipline. See A.R.S. § 32-1154(D). 3. The Registrar 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). 4. The undisputed credible testimony established that Respondent failed to complete the exterior painting properly. Therefore, the Registrar established that Respondent did not complete 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] 5. The undisputed credible testimony established that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, the Registrar established 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 revoke Respondent A E B, LLC DBA: One80 Painting’s License No. CR34.219251-D. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 final 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, January 20, 2015. /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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