ALJDEC decisions subject to certification as final

2014A-5180-ROC · Registrar of Contractors · 2016-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 2015, at 10:00 a.m. APPEARANCES: Peter J. Natoli (“Complainant”) appeared on his own behalf; Cook’s Painting Inc. (“Respondent”) appeared through Steve Cook (“Mr. Cook”), its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about January 2, 2007, the Registrar issued License No. CR34.228018-D for dual painting and wall covering to Respondent. 2. On or about December 24, 2014, Complainant filed a complaint with the Registrar, alleging that Respondent had painted Complainant’s residence at 6432 Ease Kelton Lane, Scottsdale, Arizona 85254, and that the west side of the residence was blotchy and that the residence needed to be completely repainted. 3. The Registrar assigned the complaint to its Investigator, Steve Klein (“Investigator Klein”). Investigator Klein performed a jobsite inspection and on February 20, 2015, issued a Directive to Respondent to perform certain repairs on or before 5:00 p.m. on March 10, 2015. The Directive provided in relevant part as follows: Complaint Item 1: West side of the home wall is blotchy: Areas on west wall are visually light, and touch up on siding joints at rear of home.

4. Complainant asked to amend his complaint to add other areas of alleged painting deficiencies. Inspector Klein performed another jobsite inspection and on May 19, 2015, issued a second Directive to Respondent to perform certain additional repairs on or before June 4, 2015. The May 19, 2015 Directive quoted Complainant’s new complaints and provided in relevant part as follows: 1. Complaint Item 1: The west side and patio area were repainted as the registrar[‘s] office instructed Cooks painting to do so, now as I mentioned when you came out the east side is failing as well, the paint is literally coming off my home as well as the block walls, it was never correctly primed, there was a high shine on my home before. • Verified areas where paint is light, and paint peeling on east side of home

2. Complaint Item 2: Cooks painted my home, the garage door was never primed as well, and I went ahead and simply rubbed with a clean cloth cold water to remove a spot on the door low and behold the paint comes off, I’ve never seen paint come off ever like this. • Paint easily came off when wiped with a rag.

5. Respondent failed to correct the deficiencies in the original and amended complaints to Complainant’s satisfaction and he requested a hearing. On July 14, 2015, the Registrar issued a Citation against Respondent’s license, charging cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 6. Respondent filed a timely answer to the Citation, stating that it appropriately corrected the minor issues in the paint at Complainant’s house and denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. An evidentiary hearing was held on December 22, 2015. Complainant submitted three exhibits, testified on his own behalf, and presented the testimony of his employee, Mark Dietz. Respondent submitted one exhibit and presented the testimony of Mr. Cook and its employee, Rob Sheetz. Investigator Klein also testified. Hearing Evidence 8. Investigator Klein performed a compliance inspection on June 5, 2015. Investigator Klein’s compliance inspection report provided in relevant part as follows: Verified the corrective work order dated 5/19/15 wasn’t addressed by the Respondent. The corrective work order dated 2/20/2015 was completed by the Respondent.

9. Complainant chose a dark brown paint for his residence. Complainant’s residence has a rough stucco exterior finish. 10. Investigator Klein testified that he performed a prehearing inspection on December 11, 2015. Investigator Klein testified that at that time, Respondent had made appropriate corrections to comply with the February 20, 2015 and May 19, 2015 Directives. 11. Investigator Klein testified that Complainant pointed out a certain area on the east side of the house. Inspector Klein testified that when the area was viewed from the street, it appeared to be shadowed or inconsistent but that when the area was viewed up close, the wall was painted and covered. Investigator Klein testified that the garage door and east side of the house met the Registrar’s minimum standards. 12. Investigator Klein testified that Complainant also showed him an area on the west side of the house that was high. Investigator Klein testified that although the area required minor touchup, it was not part of the original or amended complaint. 13. Complainant testified that the house was seven different colors and needed to be completely repainted. Complainant stated that he just wanted to be made whole. Complainant submitted a proposal from Atlas Construction Group dated May 3, 2015, to prime and repaint the entire residence for a cost of $2,755.76.[1] 14. Mr. Cook testified that Complainant’s residence had a large untrimmed bird of paradise bush that Respondent covered but was unable to paint behind fully. Mr. Cook testified that Respondent left three gallons of paint for Complainant to touch up behind the plant but that when Respondent returned to the job, there was no paint left. Mr. Cook testified that as a result, because Respondent did not have touchup paint, it completely re-primed and repainted the east side of the house and the west side in the back. . 15. Respondent submitted photographs that Mr. Cook had taken on July 6, 2015, after it completed the remaining repairs.[2] The photographs included views of the same area taken at different times of the day in different light and cloud cover. The photographs showed visible variations in the appearance of the same location, depending on the light and cloud cover.[3] Mr. Cook testified that the house appeared to be different colors in the shade and light because the paint color that Complainant had picked was so dark. Mr. Cook testified that the rough texture of the stucco exacerbated the variations caused by light and shadow on the house. 16. Mark Dietz testified that he was doing eBay work at the residence for Complainant when Respondent performed the job and that he saw Respondent’s workers pour water into the paint. 17. Rob Sheetz was employed by Respondent on the job. Mr. Sheetz testified that he did not pour water into the paint, but only poured water into another bucket to clean it out. Mr. Sheetz testified that Respondent painted the whole house six or seven times to address Complainant’s complaints. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[4] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[5] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[6] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[8] 4. Complainant established by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(3),[9] namely A.A.C. R4-9- 108,[10] because its initial application of paint to Complainant’s residence did not comply with the Registrar’s standards in the specific respects identified on the February 20, 2015 and May 19, 2015 Directives. However, as a matter of policy, the Registrar allows licensed contractors to attempt to repair their work before their licenses are disciplined. 5. Complainant did not establish that Respondent failed to perform appropriate corrective work to comply with the February 20, 2015 and May 19, 2015 Directives without legal excuse, although it appears that Respondent did not comply with the May 19, 2015 Directive until after the date contained in the Directive. Investigator Klein credibly testified that all the deficiencies identified in the directives had been appropriately corrected by the December 11, 2015 prehearing inspection. Respondent established that any apparent variation in the appearance of the paint was due to variations in light and shade on the stucco, not deficiencies in the application of the paint. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(22).[11] / / / / / / / / / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, Complainant Peter J. Natoli’s complaint in Case No. 2014-5180 against Respondent Cook’s Painting, Inc.’s License No. CR34.228018-D shall be dismissed. 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 five days from the date of that certification. Done this day, January 8, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Complainant’s Exhibit A. [2] See Respondent’s Exhibit 1a – 1i. [3] Compare Respondent’s Exhibit 1b, 1c, and 1g with Exhibit 1d and 1i. [4] See A.R.S. § 32-1154(A). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] See A.A.C. R2-19-119(B)(2). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [8] Black’s Law Dictionary at page 1220 (8th ed. 1999). [9] 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.” [10] 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.” [11] 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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