ALJDEC decisions subject to certification as final

2015A-1498-ROC · Registrar of Contractors · 2015-12-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2015 APPEARANCES: Kennard Smallcanyon appeared on his own behalf. Robco Inc. (Respondent) was represented by Matthew Edison, who is responsible for the division of Respondent, Affordable Painting, that performed the work at issue in this matter. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainant Kennard Smallcanyon is the owner/occupant of a residence located at 5608 East Little Wells Pass, Cave Creek, Arizona 85331. 2. Respondent holds Arizona Contractor’s License No. 153618. 3. On April 3, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had breached its contract entered into on May 21, 2014, to paint Complainant’s new home and also performed substandard work throughout his home, including over-applying paint, leaving paint on trims and doors, and poorly painting baseboards and ceiling separation lines. 4. On April 26, 2015, Respondent’s qualifying party, Robert Oliver, wrote the Registrar and said that Respondent had properly performed its contracted-for work. The letter stated that Complainant had signed a certificate of completion acknowledging that all work and services provided in the contract had been fulfilled. The letter did acknowledge that Complainant later called Respondent to come back out to the residence to look at some issues. When Eli, a subcontractor, went to the residence he agreed that some minor touch-ups to the paint job were needed. The letter concluded that Respondent agreed to perform touch up work, but Complainant refused to allow Respondent to return and demanded money instead. 5. The Registrar assigned investigator Steve Klein to investigate the complaint. Klein testified that he arranged to perform an inspection on April 30, 2015, and notified Complainant and Respondent of the time and place of the inspection by letter. The letter to Respondent was sent to its address of record. Mr. Edison testified that he did not receive the letter or he would have attended the inspection. 6. Only Complainant was present at the inspection. Klein indicated that at the time of an inspection, he substantiated Complainant’s allegations regarding poor workmanship. He indicated that he found problems with paint blemishes, paint missing in the closet and behind toilets, paint splatter of differing colors, missing outlet plates, and cut in lines that were not straight. Klein characterized these issues as touch-ups that could be easily addressed by Respondent. 7. Klein drafted a Directive from the Registrar that he intended to be mailed to Respondent on that date. The Directive stated in pertinent 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:

Complaint Item 1: Entire paint job was of substandard workmanship and or poor quality Investigator’s Observation: Verified areas where sheen varies. Cut in at ceiling lines and base need attention. Paint splatter on door trim and ceiling. Areas missed behind toilet tanks. Pantry and closets not painted.

Complaint Item 2: Job in all rooms in the house; visible brush strokes, differing paint sheen Investigator’s Observation: Verified paint sheen differences throughout.

Complaint Item 3: Over applying paint, and no attention to detail leaving paint on trim and doors. Investigator’s Observation: Verified paint splatter on the ceiling and door trim.

Complaint Item 4: All ceiling and baseboard separation lines are crooked and over or under painted. Investigator’s Observation: Verified some areas where the cut in at the ceiling lines and base need attention.

The following item was added during the inspection. Respondent wasn’t present to reply.

Complaint Item 5: Paint job wasn’t completed per contract. Investigator’s Observation: Pantry and closets were not painted inside. The Complainant stated the contract says to use Sherwin- William’s and the Respondent used Dunn-Edwards paint. I’m unable to verify what brand of paint was used; however the contractor should provide the Complainant with the information for touch-up purposes.

• Respondent shall complete project per original contract agreement.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

8. The Directive stated that the above work had to be completed by 5:00 p.m. on May 12, 2015. 9. On May 7, 2015, Mr. Oliver sent an email to the Registrar noting that Respondent “will be unambiguously disputing the claim from Mr. Smallcanyon.” That email again noted that Complainant was satisfied with the work Respondent completed and even gave Respondent a five star rating. The email did not mention the Directive or detail any efforts the Respondent had made or was making to comply with the Directive. It simply speculated that someone other than Respondent may have performed touch-ups of the residence using paint with a different sheen. 10. On May 13, 2015, Klein performed a compliance inspection at Complainant’s home. At that time, he found that none of the items listed in the Directive had been addressed and forwarded the file to the Registrar’s Legal Department for further processing. 11. On July 9, 2015, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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. 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.” 12. Mr. Edison disputed that the workmanship violations noted in the Directive were present at the time Respondent completed its work. He found it incredible that Complainant would sign a certificate of completion and award Respondent a five star rating if in fact he were not satisfied with the work. Mr. Edison agreed that he has never even been to Complainant’s residence and so does not know what the painting in the residence actually looked like. He expressed frustration that Respondent had offered to touch-up the paint job before Complainant had filed the complaint and been rebuffed. He maintained that had he known of either the inspection or Directive, he would have been there to represent Respondent’s interest and to make sure the work specified in the Directive was completed. 13. Complainant testified that the condition of the paint job done on his residence had not changed since the time Respondent completed its work. He believed the job could not just be touched-up, but required repainting his whole house. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible testimony established Respondent did work of questionable quality in painting Respondent’s home, including problems with paint blemishes, paint missing in the pantry, closet and behind toilets, paint splatter of differing colors, missing outlet plates and cut in lines that were not straight. 4. Thus, Complainant established Respondent’s work on the above items was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 and, hence, require touching up.[1] 5. Regarding a violation of A.R.S. § 32-1154(A)(22), a contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(22).[2] 6. An A.R.S. § 32-1154(A)(22) violation is not warranted given Respondent’s offer to touch up the work before the filing of the complaint. This suggests some willingness to correct the work. Under these circumstances, assessing a civil penalty is not necessary. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Order, the Registrar shall suspend Robco Inc. dba Affordable Painting’s License No. 153618 for a period of three (3) days. 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 24, 2015.

/s/ Suzanne Marwil 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 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)(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.” Emphasis added.

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