ALJDEC decisions subject to certification as final

2015A-4107-ROC · Registrar of Contractors · 2016-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 31, 2016 APPEARANCES: Complainant Mary A. Nassief appeared on her own behalf. Chris Kotol, Owner and Qualifying Party, appeared on behalf of Respondent Apartment Painters LLC doing business as, K and E Painting Solutions. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (Registrar) issued License No. 191737 to Apartment Painters LLC doing business as K and E Painting Solutions (Respondent). On or about August 13, 2015, Mary A. Nassief (Complainant) entered into a contract with Respondent to paint the exterior of her home at 2401 West Calavar Road, Phoenix, Arizona. The contract specified that “Dunn Edwards (acri hues) or Sherwin Williams 100% acrylic” paint would be used and the total cost of the project would be $2,775.00. Nothing in the contract specified a certain sheen of paint to be used. Via text messaging, Complainant inquired about upgrading the paint, which Respondent indicated would be a $50.00 additional charge. Complainant agreed. Complainant then indicated she wanted the paint to have an eggshell sheen. Respondent had concerns with using an eggshell sheen on the exterior of a house due to the resulting look. Chris Kotol testified that he was concerned Complainant would be unhappy with the finished look of an eggshell sheen and would then request Respondent repaint the house under the warranty. Mr. Kotol testified that he had contacted the paint manufacturers who also advised against an eggshell sheen on the exterior of a house. Mr. Kotol stated he usually does not specify in his contracts the type of sheen to be used on an exterior paint project, but that Respondent normally uses a flat paint with a low sheen on the windows and doors. Mr. Kotol also acknowledged that he did not ask Complainant to sign a waiver of any warranty claim she might have presented if she was unhappy with the results of an eggshell sheen. Complainant and Respondent were unable to reach an agreement as to how the project should continue, and Respondent determined it would not paint the house with an eggshell sheen. On or about September 28, 2015, the Registrar received a complaint against Respondent from Complainant alleging Respondent failed to perform its work in a professional and workmanlike manner and ultimately abandoned the exterior painting project at her home. After the Registrar assigned the Complaint to its investigator, Steve Klein, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Investigator Klein determined that the work was not completed. Because the project was not completed, Investigator Klein did not make any findings regarding any workmanship issues raised in the complaint. On or about January 15, 2016, Investigator Klein issued a Directive from the Registrar which 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 by the appropriate means:

Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

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

After the issuance of the Directive from the Registrar, Respondent did not complete the job as directed. Complainant requested a hearing. The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1). Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on June 20, 2016. Such prior License record reflects that Respondent’s License 265235 has been revoked since August 5, 2015. Such prior License record also reflects that there were nine complaints that resulted in discipline against Respondent and that there are eight open complaints against Respondent’s license. The prior License record also reflects that Respondent’s License 191737 is current. Such prior License record also reflects that the license was suspended for non-renewal from January 1, 2014, through June 6, 2014, that there are no prior complaints or discipline against Respondent, and that there is one open complaint against Respondent’s license. 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 violations 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. While Respondent may have had concerns with how the project would have turned out and Complainant’s ultimate satisfaction with the outcome of her requested paint choice, Respondent was obligated to complete the contract. Respondent could have obtained a waiver from Complainant to protect Respondent in the event Complainant was unhappy with the results and performed the work it was contracted to do. 4. The evidence established that Respondent did not complete the project after entering into a contract. Therefore, Complainant established Respondent abandoned the project in violation of A.R.S. § 32- 1154(A)(1).[1] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Apartment Painters LLC doing business as, K and E Painting Solutions’ License No. 191737 for a period of one day. 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, June 20, 2016.

/s/ Tammy L. Eigenheer 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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