ALJDEC decisions subject to certification as final

2015A-349-ROC · Registrar of Contractors · 2016-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2016 APPEARANCES: Complainant Teri Lynn Tucek appeared on her own behalf. Respondent VVA Paint Contractors LLC did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent VVA Paint Contrators LLC (Respondent) is the holder of License Nos. 232985 and 239376 issued by the Arizona Registrar of Contractors (Registrar). On or about April 10, 2013, Complainant Teri Lynn Tucek (Complainant) entered into a contract with Respondent to “paint pool cooldeck” at Complainant’s home with a total contract price of $600.00. At that time the contract was entered, Complainant paid Respondent $300.00 as a deposit. On or about April 12, 2013, Complainant paid Respondent the final $300.00 due on the contract. In May 2014, Complainant contacted Respondent to report that the paint was peeling. Respondent did not resolve the issue. On or about January 26, 2015, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work. The Registrar assigned the complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz issued a written directive to Respondent that provided 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:

License # 232985 issued to V V A Paint Contractors LLC, Expired on 09/10/2014 and cannot do nor subcontract the recommended corrective work listed in this directive. The only available remedy under this license status, if appropriate, would be financial settlement.

Complaint Item 5: Paint is not adhering to deck surface and is peeling off.

Investigator’s observation: Areas of peeling paint noted on the following areas of pool deck;

1. Circular area on what appears to be the S/E (Southeast) corner of pool. 2. Areas of peeling paint noted to left of pools water feature at the N/E (Northeast) corner of pool. 3. Areas of peeling paint noted at S (South) corner near pools edge. 4. Areas of peeling paint noted at N/W (Northwest) corner of pool. 5. Areas of peeling paint noted on patio deck by entry gate to pool.

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

Following the issuance of the written directive, Respondent did not make any attempts to do any corrective work. 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(22). The Registrar issued a Notice of Hearing, setting a hearing at 3:00 p.m. on January 4, 2016, to be held by Office of Administrative Hearings at 400 W. Congress St. Ste. 212 Tucson, AZ 85701. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on November 5, 2015. Investigator Cruz testified as to the Registrar’s standards, the jobsite inspection, and the written directive. Complainant testified on her own behalf. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 10 minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Complainant testified that tried to contact Respondent before filing the Complaint with the Registrar. Complainant indicated that at one point, Respondent sent a letter saying it would return the $600.00 she paid for the work to be done, but that she never received the money. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 24, 2016. Such prior License record reflects that Respondent’s License No. 232985 was first issued on August 13, 2007, and was expired. The Registrar’s public website does not include any License record for License No. 239376. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 3. 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). 4. The credible testimony established that the work by Respondent was not in compliance with the Registrar’s workmanship standards, Therefore, Complainant established 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] 5. The undisputed credible testimony established that Respondent did not make any attempt to comply with the written directive from the Registrar. Therefore, Complainant established 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 revoke Respondent VVA Paint Contractors LLC’s License Nos. 232985 and 239376. 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 24, 2016.

/s/ Tammy 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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