ALJDEC decisions subject to certification as final

2016A-240-ROC · Registrar of Contractors · 2016-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2016, at 10:00 a.m. APPEARANCES: Patina Yard LLC (“Complainant”) appeared through David Crawford (“Mr. Crawford”), its qualifying party/member; Another Welding Company (“Respondent”) appeared through Robert Bootz (“Mr. Bootz”), its qualifying party/officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On March 4, 2011, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR56.271491-D for dual welding to Respondent. According to the Registrar’s public website, on April 29, 2016, Respondent’s license was current and in good standing. 2. On March 5, 2014, the Registrar issued License No. CR60.289602-D for dual finish carpentry to Complainant. According to the Registrar’s public website, On April 29, 2016, License CR60.289602- D was suspended. 3. On January 20, 2016, Complainant filed a complaint with the Registrar against Respondent, alleging that Respondent owed $2,500.00 for patina metal panels that Mr. Bootz had asked Mr. Crawford to fabricate for a designer who was involved in renovating the courtyard of a hotel. 4. On March 1, 2016, after Respondent failed to resolve the complaint, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s contractor’s license. 5. Respondent filed a timely written answer to the Citation, denying any cause to discipline its license and stating that Complainant had failed to comply with the designer’s specifications for the job, the resort refused to pay for the panels, and, as a result of Complainant’s poor workmanship, Respondent lost an $85,000.00 job at the resort. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. A hearing was held on May 6, 2016. Mr. Crawford testified on Complainant’s own behalf and submitted three photographs of the panels. Mr. Bootz testified on Respondent’s behalf. Hearing Evidence 8. Respondent had a contract with the CopperWynd Resort & Club in Fountain Hills (“CopperWynd”) to perform part of the renovations to the outdoor patio. The designer that CopperWynd hired to oversee the renovations wanted outdoor fireplaces with a back patina inside and a bronze patina outside. The designer provided samples to Respondent. 9. Mr. Crawford testified that Complainant is an expert in fabricating metal patinas. Although Complainant and Respondent had never before done business together, the parties entered into a verbal contract for Complainant to fabricate the outdoor fireplaces for the CopperWynd project for $2,500.00. 10. Respondent provided the designer’s samples to Complainant. The first inside fireplace panels that Complainant fabricated were bronze. At Respondent’s request, Complainant modified the panels to be black. 11. Mr. Bootz on Respondent’s behalf signed Complainant’s estimate to accept the panels.[1] Mr. Bootz explained that although he could see bronze in the panels, he signed the acceptance so that Respondent could pick up the panels. Mr. Bootz testified that he thought the designer might accept the panels. 12. The designer at CopperWynd rejected and refused to pay for the panels. Respondent attached to its written answer a letter from the manager of CopperWynd that stated in relevant part as follows: Your company was unable to duplicate the sample selected and fulfill their contracted obligations in reference to installation time, quality, consistency and overall ability to adequately create the finish the design team had specified.

There were multiple discrepancies in the overall product created and work performed. To begin, the product was not finished and installed by the agreed upon time, forcing us to open our first class award winning restaurant without a decorative fireplace veneer. Secondly, the steel that arrived on site, late, was bronzed and nothing resembling he blackened finish that the design team specified. Finally, weeks later, upon return of the steel you had stated the bronzing was stripped and the correct finish was applied. This was in fact not true, the new finish was applied directly over the bronzed [steel] causing he colors to bleed through one another creating a grotesque mix of golds, yellows, oranges, browns, and blacks, again nothing resembling the agreed upon finish.

In final comparison the blackened steel we hired you to create was never delivered. As discussed previously, and from no fault of CopperWynd, you will not be compensated for any material, labor or damages. At this point I intend to put this debacle to rest and no longer wish to discuss these shortcomings with you or any representative of your company, please accept this letter as our severance.[2]

13. Mr. Crawford testified that it was not possible to reapply patina without fully stripping the surface. Mr. Crawford testified that Complainant matched the sample that Respondent had provided. Mr. Crawford pointed out that he had no contact directly with CopperWynd’s designer. 14. Mr. Bootz testified that Respondent provided other materials and labor to the CopperWynd project, but that after CopperWynd rejected the panels, it refused to pay Respondent anything for its work. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] 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.”[7] 4. Complainant established that Respondent did not pay $2,500.00 for the fireplace panels that Complainant fabricated pursuant to the parties’ oral contract. 5. Mr. Bootz did not testify or otherwise establish that Respondent was unable to pay Complainant for its work. 6. Respondent established that CopperWynd refused to accept or to pay Respondent for the panels because its designer felt that the panels did not match the sample provided. The Registrar has no jurisdiction over CopperWynd or its designer. 7. Both parties accepted the risk that Complainant would not be able to comply with a purely aesthetic standard that is not codified in the Registrar’s workmanship standards or any other objective criteria. Both parties chose to proceed with the transaction, even though Complainant did not demand and Respondent did not offer to provide Complainant with direct access to CopperWynd’s designer to reduce the risk that due to miscommunication of the standards, CopperWynd’s designer would reject the panels. Both parties bear some responsibility for CopperWynd’s rejection of and refusal to pay for the panels that Complainant fabricated. Although Complainant has established that Respondent violated A.R.S. § 32-1154(A)(10) by refusing to pay Complainant anything for its work,[8] Complainant is not entitled to any profit and, as noted above, bears some culpability for CopperWynd’s rejection of the panels. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Another Welding Company’s License No. CR56.271491-D shall be suspended until it has provided to the Registrar written proof that it has paid Complainant Patina Yard LLC $750.00 by certified check. 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, May 10, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See the Registrar’s electronic file at Intake Complaint Submittal.pdf at 3. [2] The Registrar’s electronic file at Lg Citation1.pdf at 2. [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”

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