ALJDEC decisions subject to certification as final

2016A-325-ROC · Registrar of Contractors · 2016-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2016, at 10:00 a.m. APPEARANCES: Willem den Draak (“Complainant”) appeared on his own behalf; Phoenixhousepainting.com LLC dba, PHP Commercial Painting (“Respondent”) appeared through John Anthony Morris, Jr. (“Mr. Morris”), its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On December 30, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR34.282670-D for dual painting and wall covering to Respondent. On January 27, 2016, Complainant filed a complaint with the Registrar against Respondent, alleging that it had done a poor job applying a coating to the garage floor at Complainant’s house at 9384 East Conquistadores Drive, Scottsdale, Arizona 85255. According to the complaint, Complainant had paid Respondent $1,600.00 of the $3,200.00 contract price. The Registrar assigned the complaint to Investigator Matt Gunstra (“Investigator Gunstra”) for investigation. On February 22, 2016, Investigator Gunstra performed a jobsite inspection. On February 25, 2016, Investigator Gunstra issued a Directive to Respondent to perform the following repair: Garage concrete has depressions and irregularities from the mechanical removal of the coating. Respondent is responsible for appropriate repairs and shall complete the project per product manufacturer’s guidelines/specifications.

The deadline for Respondent to perform the repair was March 15, 2016, at 5:00 p.m. On March 24, 2016, the Registrar issued a Citation against Respondent’s license, charging A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). Respondent’s qualifying party/member Mr. Morris timely answered the Citation, denying any statutory violation and affirmatively alleging that he had made numerous attempts to contact Complainant to schedule repairs, but that Complainant would not allow Respondent on his property. Respondent attached to the written answer emails between the parties in which Respondent attempted to schedule repairs, but Complainant refused because he asserted that Respondent did not have the right kind of contractor’s license to perform repairs. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on June 2, 2016. Complainant testified and submitted 13 exhibits, consisting of photographs of Respondent’s two attempts to apply the floor coating and the coating applied by another contractor that Complainant had hired. Mr. Morris testified on Respondent’s behalf. Investigator Gunstra also testified. Additional Hearing Evidence Investigator Gunstra testified that at the jobsite inspection, the parties indicated that Respondent had mechanically removed the coating that it had initially applied because Complainant was dissatisfied with the job and that the complaint involved Respondent’s second attempt to apply the coating. Inspector Gunstra testified that the parties indicated that while Respondent was applying the sealer for the second application, Complainant told Respondent to stop because Complainant believed that the entire floor coating had to be removed again and reapplied. Investigator Gunstra testified that initially, he was not sure that Respondent’s C34 license allowed it to apply an epoxy coating to a floor. Investigator Gunstra testified that Complainant contacted his supervisor, Scott Deering, the Assistant Compliance Director, and that Mr. Deering determined that application of an epoxy floor coating was within the scope of Respondent’s C34 license. Investigator Gunstra testified that Complainant stated at the jobsite inspection that he would not allow Respondent back to make repairs. Investigator Gunstra testified that Mr. Morris contacted him on March 15, 2016, to inform him that Complainant would not allow Respondent access to complete the second application of the floor coating. Investigator Gunstra testified on that same date, he called Complainant, who confirmed that he had not allowed Respondent to complete the job but instead had hired another contractor to perform repairs. Investigator Gunstra testified that at that point, he sent the case to the Registrar’s Legal Department. Complainant testified that it made no sense to allow Respondent to attempt to apply the floor a third time, after it had failed to do so satisfactorily on two previous attempts. Mr. Morris testified that he had a plan to fix the floor, which he conveyed to Investigator Gunstra, and that Respondent was not finished with the second application at the times when Complainant filed the complaint with the Registrar and the February 25, 2016 Directive was issued. The Registrar’s public website shows no previous discipline or complaints against Respondent’s license. Complainant’s complaint apparently is the only complaint pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s contracting law violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] Complainant acknowledged that he did not allow Respondent access to attempt to comply with the February 25, 2016 Directive. Licensed contractors are presumed to have the expertise to perform work, including corrective work, within the scope of their licenses. According to Investigator Gunstra, the Registrar has determined that Complainant’s project is within the scope of Respondent’s C34 license. Respondent’s license is in good standing. Complainant acknowledged that he did not allow Respondent access to comply with the Registrar’s Directive but, instead, hired another contractor to remove Respondent’s work and reapply the floor coating. Because a homeowner’s refusal to allow a contractor access to perform repairs constitutes legal justification for the contractor’s failure to comply with a directive issued by the Registrar, Complainant has not borne his burden to establish cause to discipline Respondent’s license under A.R.S. § 32- 1154(A)(22).[6] The Registrar can only investigate a workmanship complaint going forward from the date that it is filed and cannot evaluate a contractor’s work that was removed before the complaint was filed. Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their work before the Registrar will discipline their licenses.[7] Although the floor coating at the time of the jobsite inspection may have required correction or completion, Complainant has not borne his burden to establish cause to discipline Respondent’s license under A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108.[8] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Willem den Draak’s complaint against Respondent Phoenixhousepainting.com LLC dba PHP Commercial Painting’s License No. CR34.282670-D shall be closed because Respondent was denied access to correct or complete its work. 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, June 7, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] 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). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [7] See A.R.S. § 32-1154(A)(22). [8] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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