ALJDEC decisions subject to certification as final

2015A-3736-ROC · Registrar of Contractors · 2016-02-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2016 APPEARANCES: Glynn Owen Ellis appeared on his own behalf. Respondent Michael Peter Gibson dba, Paint Pros, represented his own interests. 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 Glynn Owen Ellis is the owner/occupant of a residence located at 15044 East Montgomery, Scottsdale, Arizona 85262. 2. Respondent holds Arizona Contractor’s License 256410. 3. On August 31, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had removed excessive roof tile during an exterior painting project. 4. The Registrar assigned investigator Matt Gunstra to investigate the complaint. Gunstra testified that he arranged to perform an inspection on September 21, 2015, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Gunstra indicated that at the time of an inspection, he did not substantiate that Respondent’s brother Ted Thorson, who performed the exterior painting, removed excessive tile for the method chosen to access the roof, which involved using ladders. In light of the fact that the parties had a dispute over whether Respondent was authorized to remove any roof tile at all (an issue on which their contract was silent), Gunstra viewed the removal of tile as a workmanship issue. He also indicated that removing tile was beyond the scope of Respondent’s painting license. 5. On October 6 2015, Gunstra sent Respondent a Directive from the Registrar. 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:

1. Roof tiles were removed by Respondent in several areas. This action is out of scope of Respondent’s license and was not agreed to in the contract with Complainant.

NOTE: Complainant is advised to obtain 2-3 competitive bids solely for the reinstallation/repair of tiles removed by Respondent. Upon completion of the repairs Respondent is to reimburse Complainant or pay the repairing contractor directly. Alternatively, a financial settlement between the parties can be reached.

6. The Directive stated that the above work had to be completed by 5:00 p.m. on October 23, 2015. 7. Gunstra testified that he conversed with both parties during the Directive timeframe, but that no financial settlement was reached. He therefore forwarded the matter to the Registrar’s legal department for review. 8. On November 19, 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.” No violation of A.R.S. § 32-1154(A)(16) for knowingly working outside the scope of a licensee’s license was charged. 9. Complainant testified that in February 2015, he obtained various bids to perform exterior painting of his residence, which had a Mexican roof, and was informed that the painters would need to use a boom and scaffolding in order to protect the roof. He noted that these companies advised he could also hire a roofing company to remove the tiles before painting. After doing some research, Complainant determined that hiring a roofing company to remove the tile was too expensive. 10. Complainant stated that he ultimately hired Respondent, who is the husband of Complainant’s ex-wife, to do the painting in July 2015 because Respondent informed him that his brother Ted Thorson was a good painter and could do the work. Complainant recalled discussing with Thorson that he needed to use a boom and scaffolding. Complainant maintained he told Thorson not to remove any tile. Complainant agreed that he later consented to a small amount of tile removal to aid Thorson in accessing tight places, but said he was later shocked and devastated over the amount of tile removed. 11. Complainant submitted into evidence letters from Respondent admitting that Thorson “made a mistake removing the roof tiles,” (Exhibit A) and stating “I have been careless with this whole roof affair.” Exhibit B. Complainant also read into the record text messages from his former wife who is now Respondent’s wife, which appeared to suggest that Thorson had removed tile on other jobs, but always puts them back. 12. Ted Thorson testified that he performed the exterior painting work at Complainant’s home. He stated that he had done a beautiful job and that his only mistake had been removing the tile instead of breaking them during his painting work. He emphasized that Respondent’s contract expressly disclaimed responsibility for roof damage and specified that roof tiles would be broken, but that it hoped to minimize roof repair costs. Thorson indicated that once he began work, he noticed that a lot of tiles were breaking during work, and in an effort to keep Complainant happy, he decided to remove the tile instead. He denied that Complainant ever told him not to remove tile. In fact, he recalled that Complainant was told tile needed to be removed in tight places, authorized it, and then watched in silence until the work was complete. He noted that he was not aware that it was beyond the scope of Respondent’s license to remove the tile. Thorson noted that Complainant waited until after the painting was complete to complain about the amount of tile removed. 13. The parties’ July 30, 2015 contract contains the following notes: We will take the utmost care in working on the roof and it will be unavoidable that we break some of the roof tiles as we discussed. Therefore we assume no liability for any broken tile or roof repair costs associated with working on the areas of the roof we would need access to. That said, with care and deliberation, we believe we can keep your repair costs lower then [sic] expected.

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. Respondent admits that Thorson removed tile, work that it should have known was outside the scope of its license. No violation of A.R.S. § 32-1154(A)(16)[1] for working outside the scope of the license was cited in this case. Accordingly, the Tribunal has no jurisdiction to discuss whether an A.R.S. § 32-1154(A)(16) was established. 4. The question before the Tribunal is whether Complainant has established that Respondent’s work on the roof as specified in the Directive 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.[2] Gunstra testified, in his view, the answer to this question turns on whether removal of tile was contemplated by the parties when their contact was signed. Complainant is adamant that he told Thorson not to remove tile and later authorized only the most minimal removal of tile. Respondent contends that the parties discussed removing the tile and Complainant agreed, knowing full well the amount of tile involved. Where, as here, the evidence on both sides is of equal weight, Complainant has failed to establish by a preponderance of the evidence a violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108. 5. An A.R.S. § 32-1154(A)(22) violation is also not warranted given that the workmanship violation that was the subject of the Directive has not been established. In addition, the record reflects that the parties did engage in settlement discussions in an attempt to achieve financial resolution of this disputed matter. RECOMMENDED ORDER Based on the foregoing, it is recommended that Complainant’s Complaint 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 40 days from the date of that certification. Done this day, February 29, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee. [2] 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.”

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