ALJDEC decisions subject to certification as final

2016A-2609-ROC · Registrar of Contractors · 2016-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William V. Bovinette,

COMPLAINANT,

v.

Jonathan MacIntosh Duncan

DBA: Pearl Painting,

License No. CR34.239706-D,

RESPONDENT.

No. 2016A-2609-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 5, 2016, at 1:00 p.m.

APPEARANCES: William V. Bovinette (“Complainant”) appeared on his own behalf; Jonathan MacIntosh Duncan DBA: Pearl Painting (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about December 10, 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR34.239706-D for dual painting and wall covering to Respondent.

On or about July 19, 2016, Complainant filed a complaint with the Registrar stating that Respondent had agreed to use Sherwin Williams paint to paint the exterior of Complainant’s house at 15549 E. Robin Drive, Fountain Hills, Arizona 85268, but that Complainant suspected Respondent had used Behr paint. Complainant stated that he had called the Sherwin Williams stores in Fountain Hills and the five nearest locations and had been informed that Respondent had not purchased the paint for Complainant’s project at any of the stores. Complainant alleged that the morning after he had refused to pay Respondent’s invoice for additional work on his house, he found a large area of his driveway covered in pink paint and manure and had called the sheriff. Complainant stated that he did not want Respondent near his house because he did not trust Respondent.

Complainant attached Respondent’s contract to the complaint. The contract required Respondent to paint the house with three coats of Sherwin Williams paint and to “[s]tain Vega Poles & Face & wood over windows; Fill and Seal Beam on Side of Garage (East)” for a contract price of $4,800.00. At Complainant’s request, Respondent also stained the garage doors with a product that Complainant had provided. Complainant attached Respondent’s invoice for sealing the garage doors and applying four coats of paint to the southwest and east walls of the house, for an additional cost of $700.00.

The Registrar assigned the complaint to its Senior Investigator, Randy Cason (“Investigator Cason”) for investigation. In response to Investigator Cason’s question, Complainant stated that Respondent had left a can of Sherwin Williams paint at Complainant’s house. Investigator Cason stated that he could not determine whether Respondent had used Sherwin Williams to paint the house.

Respondent testified that he used 5-gallon containers of Sherwin Williams paint on Complainant’s house and that Complainant was present when Respondent painted the house.

On August 25, 2016, after Complainant informed Investigator Cason that he would allow Respondent back on the jobsite, Investigator Cason performed a jobsite inspection. Respondent did not attend the jobsite inspection.

On May 12, 2016, Investigator Cason issued a Directive, which required Respondent to correct by appropriate means certain workmanship deficiencies, in relevant part as follows:

Vega poles around the whole house have areas where the stain has peeled away from the finish[ed] surface.

The Southeast corner window in the back of the house . . . has areas where the stain finish has peeled away from the wood header surface above the window.

The left side of the single garage door has area where the stain has peeled away from the finish[ed] surface.

The double garage door has areas on the face of the door where the stain has peeled away from the finish[ed] surface.

Corbels on both garage door headers have areas that have not been stained on the cut sides.

The deadline in the Directive for Respondent to correct its work was on or before 5:00 p.m. on September 10, 2016.

On September 9, 2016, Investigator Cason received Complainant’s September 7, 2016 letter in which he stated that he “[did] not want [Respondent] to lose his license but he should have a formal Reprimand for his bad business practice.—He can not Return to my property to complete the work.”

At that point, Investigator Cason sent the complaint to the Registrar’s Legal Department. On September 13, 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.

Respondent filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that he performed extra work at Complainant’s request, but Complainant refused to pay him for the work.

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on December 5, 2016. Investigator Cason, Complainant, and Respondent testified consistently with the facts set forth above.

Complainant stated that his wife did not want Respondent back on the property. He did not want the Registrar to take away Respondent’s license, but he wanted the Registrar to do something that would prevent Respondent taking advantage of other senior citizens in the future.

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.”

The oral statements of the unnamed Sherwin Williams store managers and salesmen are hearsay. Although hearsay may be admitted in an administrative hearing, it should not be relied upon if it is not the kind of evidence that reasonable persons would rely upon in serious matters. Complainant’s testimony about what various Sherwin Williams store employees told him is not the kind of evidence that reasonable persons would rely upon to suspend or revoke a contractor’s license and thereby jeopardize his livelihood.

Similarly, the pink paint and manure that was left on Complainant’s driveway is a criminal act that is under investigation by the sheriff’s office. The Registrar will defer to the outcome of the sheriff’s investigation, but until such outcome of reached, the Registrar will not anticipate the outcome or perform its own criminal investigation. On this record, Respondent cannot be held responsible for the vandalism at Complainant’s house.

Complainant established that Respondent’s staining of the Vega poles, corner window, garage doors, and corbels did not comply with the Registrar’s or industry standards. Complainant thereby potentially 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.

Because construction is not a perfect art, contractors generally must be afforded at least one opportunity to correct their deficient work before their licenses may be suspended or revoked. Complainant acknowledged that he refused to provide reasonable access for Respondent to perform repairs or to comply with the Registrar’s August 25, 2016 Directive. The only remedy that A.R.S. § 32-1154(A) affords to homeowners is discipline against a contractor’s license, not any public shaming. Because Complainant does not want the only remedy that is available to him, the Registrar should close this complaint.

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainant William V. Bovinette’s complaint in Case No. 2016-2609 against Respondent Jonathan MacIntosh Duncan DBA: Pearl Painting’s License No. CR34.239706-D shall be closed based on denial of access.

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, December 6, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors