ALJDEC decisions subject to certification as final
2016A-2044-CHC-ROC · Registrar of Contractors · 2017-05-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
James Douglas Harvey,
COMPLAINANT,
v.
Paul Johnson Drywall Inc.,
License No: 176652
RESPONDENT.
No. 2016A-2044-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 25, 2017
APPEARANCES: Complainant James Douglas Harvey appeared on behalf of himself. Jerry Carter, Esq. appeared on behalf of Respondent Paul Johnson Drywall Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On January 11, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on February 27, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Paul Johnson Drywall Panting, Inc., (hereinafter “Paul Johnson Drywall”), holds license number 176652 issued by the Registrar. Paul Johnson Drywall’s qualifying party is Paul Johnson.
The Notice of Hearing shows that the hearing was set to consider the charges made in the citation and complaint.
Through the citation, the Registrar alleges that Paul Johnson Drywall may have violated Rule 4-9-108 and A.R.S. §§ 32-1154(A)(2),(A)(3) and (A)(22). The citation shows that if the Administrative Law Judge finds that either subsection has been violated, the Registrar may suspend or revoke Paul Johnson Drywall’s license.
Complainant James Harvey, (hereinafter “Mr. Harvey”), owns a commercial property located at 1605 W. McIntosh Drive in Prescott, Arizona.
On or about April 11, 2016, the parties entered into a contract to perform drywall at Mr. Harvey’s property.
Paul Johnson Drywall performed work on the property from April 20, 2016 to May 11, 2016.
On June 13, 2016, the Registrar received a complaint from Mr. Harvey alleging deficiencies on Paul Johnson Drywall’s part.
On July 19, 2016, in response to Mr. Harvey’s complaint, Registrar Investigator Jim Dimond, (hereinafter “Investigator Dimond”), conducted a job-site inspection. Because the parties informed Investigator Dimond that they would try to resolve the issue at a meeting later that day. Therefore, Investigator Dimond closed on the complaint.
10. On September 12, 2016, the Registrar received a second complaint from Mr. Harvey. Paul Johnson Drywall performed additional work on Mr. Harvey’s property on in August of 2016. The parties were unable to resolve the matter. Mr. Harvey alleged in the complaint that Paul Johnson Drywall performed poor work. Mr. Harvey also requested money to pay the paint contractor that he hired to restore his home.
11. On October 19, 2016, Investigator Jim Dimond conducted a second job-site inspection.
12. On November 22, 2016, Investigator Dimond sent Respondent a Directive from the Registrar. The Directive provided, in relevant 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:
Item- (Condensed) After agreeing to make corrections to the drywall surfaces, there are still imperfections showing nail/screw locations and due to the substantial amount of patching, the respondent refuses to paint the repairs.
The respondent is to repair the drywall finish at locations of nails/screws. Due to the large volume of repairs the respondent is to resolve the painting of the repairs in an appropriate manner.
The investigator considers these repairs to constitute meeting the requirement of ‘one time in the first year’ for drywall repairs including cracks, seams and nail pops.
13. The directive stated that the above work had to be completed by 5:00
p.m. on December 8, 2016.
14. On December 8, 2016 at approximately 1:52:15 p.m., Paul Johnson, the qualifying party of Paul Johnson Drywall inquired with Mr. Harvey by electronic mail, (hereinafter “e-mail”), whether Mr. Harvey and his wife had determined when they wanted the repairs done.
15. Mr. Harvey did not respond to Paul Johnson’s email.
16. On December 12, 2016, Investigator Dimond sent Mr. Harvey an e-mail message asking whether Paul Johnson Drywall had complied with the directive.
17. On December 12, 2016, Mr. Harvey forwarded Paul Johnson Drywall’s December 8, 2016 email to Investigator Dimond and wrote that he received Paul Johnson Drywall’s email on Thursday and had not responded to it.
18. The Registrar issued a Citation against Respondent, charging possible
violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); 32-1154(A)(2) and A.R.S. § 32-1154(A)(22).
19. Paul Johnson Drywall’s position was that Mr. Harvey denied it access to it complete the repairs. Although Paul Johnson contacted Mr. Harvey within the timeframe of the directive regarding a time to make repairs, Mr. Harvey did not respond. Paul Johnson Drywall also contended that it is not responsible for the condition of the drywall because it was caused by the lack of primer. Paul Johnson also contended that Mr. Harvey did not schedule a walk through with Paul Johnson Drywall after the last coat of paint was applied and before it applied the drywall. Paul Johnson Drywall contended that it was not hired to paint Mr. Harvey’s walls and the painter failed to apply primer which caused the cracks, seams and nail pops.
20. Mr. Harvey contended that the drywall failure was caused by the poor
workmanship of Paul Johnson Drywall. Mr. Harvey contended that his painter used primer before the paint was applied. Mr. Harvey testified that he believed the Registrar would coordinate the completion of the repairs under the Directive.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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).
The preponderance of the evidence does not show that Paul Johnson Drywall violated A.R.S. §32-1154(A)(22) by failing to comply with the Directive because Mr. Harvey did not allow Paul Johnson Drywall access to correct the work. Although Paul Johnson contacted Mr. Harvey during the timeframe of the directive to find out when Mr. Harvey wanted the repairs done, Mr. Harvey did not respond.
The preponderance of the evidence established that Mr. Harvey denied Paul Johnson Drywall access to his home to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Paul Johnson Drywall violated the charged provisions of A.R.S. §§ 32-1154(A)(2), A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter 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 is forty days after the date of that certification
Done this day, May 15, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors