ALJDEC decisions subject to certification as final

2016A-1138-ROC · Registrar of Contractors · 2016-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John George Evans,

COMPLAINANT,

v.

Creative Finishing Services, Inc.,

License No. CR34.280445-D,

RESPONDENT.

No. 2016A-1138-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 7, 2016, at 10:00 a.m.

APPEARANCES: John George Evans (“Complainant” or “John Evans”) appeared on his own behalf; Creative Finishing Services, Inc. (“Respondent”) appeared telephonically through David Joseph Landis (“Mr. Landis”), its qualifying party/officer.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background

On or about August 20, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR34.280445-D for dual painting and wall covering to Respondent.

On or about April 7, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work on its February 15, 2016 contract to paint the interior of Complainant’s house at 1300 Table Mountain Road, Chino Valley, Arizona 86323.

According to the complaint, Complainant had paid Respondent $1,750.00 on a $2,500.00 contract. Respondent had started work on March 21, 2016, and stopped work on April 2, 2016. The complaint noted that Mr. Landis “has been very unprofessional, threatening to the point that we called the Sheriff and a statement was made about his behavior.”

Complainant attached to his complaint a copy of Respondent’s contract, which did not contain an estimated completion date, apprise Complainant of his right to file a complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), or contain the Registrar’s website address or telephone number.

The Registrar assigned the complaint to its Senior Investigator, Jim Dimond (“Investigator Dimond”) for investigation. Investigator Dimond performed a jobsite inspection on May 19, 2016. Complainant but not Respondent attended the initial jobsite inspection.

On June 8, 2016, Investigator Dimond issued a Directive that required Respondent to correct by appropriate means certain workmanship deficiencies, in relevant part as follows:

Item 1- Paint was to be 2 coats- old paint is visible

There are areas throughout the entire house that have bare spots and areas of inadequate coverage. This includes doors.

The respondent is to correct the condition in an appropriate manner.

Item 2- Areas of drywall patching do not meet standards for texture

The respondent is to correct the condition in an appropriate manner.

Item 3- The respondent failed to protect areas not designated for paint.

Paint is on tile, light fixtures, baseboard, registers and wood trim.

The respondent is to correct the condition in an appropriate manner.

Item 4- HVAC return grille has not been re-installed

The respondent is to correct the condition in an appropriate manner.

Item 5- Contract does not meet statutory requirements.

The respondent is to review the attached violation letter and submit a compliant contract for future use to the investigator within the mandated time frame.

The deadline in the Directive for Respondent to correct its work was on or before 5:00 p.m. on June 24, 2016.

After Respondent failed to comply with the Directive, Investigator Dimond sent the complaint to the Registrar’s Legal Department. On July 26, 2016, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B), and A.R.S. § 32-1154(A)(22).

Mr. Landis on behalf of Respondent filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that the painting work was not fully completed and that Complainant had refused to provide reasonable access for the job to be completed. Mr. Landis asserted that Complainant and his son had threatened Mr. Landis and that, as a result, Mr. Landis had to make a complaint to the police.

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A videoconference evidentiary hearing was held on October 7, 2016, from the Registrar’s Flagstaff office. Complainant submitted three exhibits and presented the testimony of three witnesses: (1) Himself; (2) His son, Jonathan J. Evans (“Jonathan”), and (3) His wife, Darlene Evans (“Mrs. Evans”). Mr. Landis appeared telephonically on Respondent’s behalf and testified on his own behalf. Investigator Dimond also testified.

Hearing Evidence

Investigator Dimond testified that he performed a compliance jobsite inspection on June 24, 2016, and that none of the items on the June 8, 2016 Directive had been corrected.

Investigator Dimond testified that the guest bathroom in Complainant’s house was purple and now is yellow and that walls that were formerly white were now coffee brown. Investigator Dimond testified that throughout the house, the former color was bleeding through the paint that Respondent applied. Investigator Dimond testified that the first item on the June 8, 2016 Directive required Respondent to correct the paint throughout the house because the workmanship deficiencies were too extensive to describe specific areas in the Directive. Investigator Dimond testified that the entire interior of the house needed at least two coats of paint.

Investigator Dimond testified that there were several drywall patches in the great room that were lumpy and not adequately flush with the finish or flat without any texture.

Investigator Dimond testified that there was paint on light fixtures, hinges, wood trim, registers, and on the tile floors. It did not appear that Respondent had taped off anything and, instead, had that it had attempted to paint the interior of the house freehand.

Investigator Dimond testified that the HVAC air return grill had not been re-installed.

Investigator Dimond testified that Respondent had not submitted to the Registrar a form contract that complied with A.R.S. § 32-1158(B).

Mr. Landis acknowledged that Respondent had not complied with the June 8, 2016 Directive. Mr. Landis testified that he asked his wife to send a new form contract to Investigator Dimond, but that she must have forgotten.

Mrs. Evans testified that after Respondent started the project on March 21, 2016, she and Complainant had used painter’s tape to mark the areas that they thought needed to be touched up or corrected. Mrs. Evans testified that on Wednesday, March 30, 2016, Mr. Landis saw the tape and got mad and left.

Mrs. Evans testified that she set up an appointment with Mr. Landis on Saturday, April 2, 2016, at 8:30 a.m. and asked her adult son, Jonathan, to be present as a peacekeeper. Mrs. Evans testified that Complainant and Jonathan spent at least four hours inside with Mr. Landis on a walk-through while she worked in the yard.

Complainant submitted Yavapai County Sheriff’s Office Incident Report 16-012047. According to the report, Officer S.C. Blakley responded to a report that Complainant had made at 1:35 p.m. about an incident that had occurred at the house several minutes earlier. The narrative of the report provided as follows:

Synopsis:

John Evans felt threatened by David Landis.

Narrative:

On 04-02-16 I met with John Evans at his home. John told me that he had a disagreement with David and David pointed his finger as if holding a gun at him. John told me that he had hired David to paint an inside area of his house [and] was not happy with the work that had been done.

I asked John if he felt that his life had been threatened and he said that he did and wanted this documented in case David came back to the house. John told me that David had finished all work and should not have any reason to come back out.

John did not want prosecution at this time.

Complainant and Jonathan denied that they were abusive or threatening to Mr. Landis on April 2, 2016. Complainant testified that when Mr. Landis saw how much work he would need to do to correct and complete the job, he became overwhelmed and left.

Mr. Landis testified that on April 2, 2016, he came to touchup and finish the job at Complainant’s house. Mr. Landis testified that he had applied three or four coats of paint to most surfaces, but that the interior of the house had not been painted in years. Mr. Landis testified that the paint on the light fixtures, hinges, wood trim, registers, and on the tile floors was from earlier jobs.

Mr. Landis testified that on April 2, 2016, Jonathan started yelling at him and getting out of control, spraying him with saliva. Mr. Landis testified that because he felt it was an unsafe work environment, he left.

Mr. Landis testified that two days later, after Complainant did not call to apologize, he contacted the Yavapai County Sheriff’s Office. Respondent attached to its written answer Yavapai County Sheriff’s Office Incident Report 16-012284. Deputy T. Direen reported a telephone conversation with Mr. Landis as follows:

On 04-04-16 at about 1145 hrs., I talked to David Landis on the phone in reference to a dispute he had with a client on Saturday April 2, 2016. David explained he is a licensed and bonded painter. He told me he did some painting for a John Evans who lives on table Mountain road in Chino valley. David said John was not happy with his work and told him he was not going to get paid. David said he is a member of the ROC and he wanted to make good on John’s complaints even though he was not going to get paid. David said he returned to [Evans’] residence on Saturday to clean up and fix some things that needed fixing. He told me John argued with him the whole time he was there and John’s adult son, Jonathan Evans, was up from Phoenix and he stood over him the whole time as well. David said John’s son cursed at him a lot and threatened to, “kick his ass off of the property.” David told me he wanted the incident documented.

Mr. Landis testified that Respondent did not comply with the June 8, 2016 Directive because the Yavapai County Sheriff’s Office had told him that he should not return to Complainant’s house because it was an unsafe environment and calmer heads needed to prevail.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior license history on the Registrar’s public website. On September 29, 2016, Respondent’s license was current and in good standing. There has not been any prior discipline against the license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Complainant established that Respondent’s workmanship in painting the interior the house was generally poor, that the paint job had extensive deficiencies, and that Respondent did not comply with the Registrar’s or industry standards, as described on the June 8, 2016 Directive.

Respondent did not establish that Complainant refused to provide reasonable access for it to complete its work or to comply with the June 8, 2016 Directive or that the deficiencies were the result of other painters’ work or the poor condition of the walls. As a professional licensed contractor, Respondent is required to comply with the Registrar’s standards and if it cannot comply with the standards, not to undertake the job. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Complainant’s and Jonathan’s testimony about the April 2, 2016 incident was more credible than Mr. Landis’ testimony. It appears that Mr. Landis contacted the Yavapai County Sheriff’s Office only after he learned that Complainant had made a report. The reports that both parties submitted described relatively minor incidents that occurred more than two months before the Directive was issued. The Yavapai County Sheriff’s Office did not follow up with a criminal investigation of either alleged incident. Licensed contractors are expected to have sufficient professionalism to deal with difficult clients and situations. Because Respondent made no effort whatsoever to comply with the June 8, 2016 Directive, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

The record also establishes cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Creative Finishing Services, Inc.’s License No. CR34.280445-D shall be suspended for five business days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty calendar days following the effective date of the final order, Respondent’s license shall be revoked, 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.

It is further recommended that thirty calendar days after the effective date of the final order, Respondent’s contractor’s license shall be suspended until it provides written proof that is acceptable to the Registrar that it has revised its contract form to comply with A.R.S. § 32-1158(B). If Respondent provides such acceptable written proof within thirty calendar days, its license shall not be suspended.

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 five days from the date of that certification.

Done this day, October 20, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors