ALJDEC decisions subject to certification as final

2015A-24-ROC · Registrar of Contractors · 2015-12-04

HEARING: November 17, 2015. APPEARANCES: Complainant Stanley Joseph appeared on his own behalf. Respondent, sole proprietor, Jonathan MacIntosh Duncan dba Pearl Painting appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. 239706 to Respondent Jonathan MacIntosh Duncan dba Pearl Painting (“Respondent”). The Registrar received a Complaint against Respondent from Stan Joseph (“Complainant”) alleging that Respondent failed to complete a painting project for which it had contracted and had been paid a total of $2,400.00. Attached to the Complaint was a proposal submitted by Respondent to provide four men for two days at a price of $999.00 a day. The proposal acknowledged that Complainant tendered a check for $2,000.00 and indicated that work would begin the week of November 17, 2014. The Complaint also stated that Complainant had previously paid Respondent $400.00 in June 2014 for a project involving painting the roof of another home that did not take place because tenants moved into that home. Complainant testified at hearing that Respondent agreed that the money paid on this project would be credited toward other work Respondent did for Complainant. It is undisputed that Respondent never performed the work referenced in the proposal. Text messages between the parties that were available on Complainant’s cellular telephone were read into the record and established that Respondent proffered various reasons for not completing the work before the Complaint was filed: inclement weather, his ill health and the fact that other jobs had taken more time than expected. At one point, Respondent indicated in the text messages that he was dying and Complainant sent his prayers, but said he was not comfortable with Respondent doing the work in that condition. In the text messages, Respondent agreed to a refund, but none was forthcoming despite Complainant’s offer to come pick up the check. Further attempts to schedule the work were similarly unsuccessful. Upon the filing of the Complaint, the Registrar assigned Matt Gunstra to investigate. Inspector Gunstra notified both Complainant and Respondent that a jobsite inspection was scheduled for February 10, 2015. Respondent did not attend. During the inspection, Gunstra determined that no new paint had been applied at Complainant’s home. He concluded that Respondent had abandoned his agreed upon work and forwarded the matter to the Registrar’s legal department. The Registrar issued a Citation and Complaint against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1). Respondent filed a timely written answer to the Citation indicating: I was running a "Painter for a week" coupons on Angie's List, which consisted of 40 hours of painting, labor only, for $999.00 (see attached copy). Mr. Joseph decided to purchase the coupon directly from me instead of going through Angie's List. We set a start date for the week of November 17th, 2014. Due to severe health issues I needed to reschedule the job and notified Mr. Joseph promptly. The weather and Mr. Joseph's travel plans also played a part in the delay of job. The coupon was not valid for cash back so I contacted him via phone and email to try to reschedule several times, but received no reply. I do not feel my license should be suspended or revoked as I am more than willing to fulfill the contract and complete the job if Mr. Joseph would allow.

The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. At hearing, Inspector Gunstra testified that while illness can be a legal justification for abandonment, in his view, the fact that Respondent had other men available to work and did work on other jobs both before and after the Complaint was filed supported charging abandonment. He found it particularly troubling that Respondent did not attend the inspection on February 10, 2015, and made no effort from the time the Complaint was filed through the inspection to perform the job. He noted that over a year had passed since Respondent had taken the money for work he had not performed. Complainant detailed his considerable efforts to schedule the painting work for which he had paid Respondent. He testified that he had filed a claim in small claims court, but stopped that in favor in favor of proceeding with the Registrar. He said he had no confidence that Respondent would do the work and simply wanted his money back. Complainant denied ever telling Respondent that his men could not do the work in his absence. Respondent testified that he had been gravely ill for several months beginning November 11, 2014. He acknowledged that his men worked indoor painting projects in November 2014, but said it was too cold and wet to do Complainant’s exterior work. He maintained that Complainant did not want the work done unless Respondent himself was present. Respondent stated that he was under the impression that once Complainant’s complaints were filed in both small claims court and with the Registrar, the parties could not have contact. He repeatedly testified that he could and would do the work. He also said he would refund $2,400.00 to Complainant if given 30 days to do so. 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 violation 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. Complainant established that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32- 1154(A)(1).[1] Respondent’s sickness does not constitute legal justification for the abandonment in light of evidence that Respondent, by himself or through other men, was doing other jobs when he could have done Complainant’s work. In all the time that has passed since Complainant paid Respondent, Respondent has never presented himself or his men ready and able to perform the work. It is therefore unreasonable to suggest that Respondent has always been willing to perform. In the same vein, it is unreasonable to suggest that there were no days between November 17, 2014, and January 5, 2015, in which the Arizona weather was fit for exterior work. The record clearly supports an abandonment. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Jonathan MacIntosh Duncan dba Pearl Painting’s License No. 239706 for a period of 14 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 4, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

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