ALJDEC decisions subject to certification as final

2016A-3527-ROC · Registrar of Contractors · 2017-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Louis Segal,

COMPLAINANT,

v.

C Blackshear Construction LLC,

License No: 288366

RESPONDENT.

No. 2016A-3527-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 25, 2017

APPEARANCES: Complainant David Louis Segal appeared on his own behalf. Ed Blackshear Jr., General Manager, and Carmen Blackshear, Qualifying Party, appeared on behalf of Respondent C Blackshear Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

C Blackshear Construction LLC (Respondent) is the holder of License No. 288366 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 25, 2016, David Louis Segal (Complainant) signed a contract with Respondent to “Retexture/Repaint Home Interior (Approximately 1500 SF).” The contract did not include a projected end date for the project. The total contract price was $4,014.50.

On or about September 12, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on November 1, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Retexturing wall & ceilings – imperfections are still visible.

Numerous imperfections in surfaces of walls throughout residence. The following is representative of some of the issues noted; texture in ceiling of master bedroom near west (W) wall is flat and, performed in workmanlike manner, visible raised patch on north (N) wall of guest bedroom bathroom and, not performed in workmanlike manner, flat spot on northeast (N/E) wall of guest bedroom closet, did not finish texturing and painting of wall on east (E) wall of laundry room near baseboard.

Complaint Item 2: Retexturing wall & ceilings – nail pops are still visible.

Numerous nail pops still visible throughout residence.

Complaint Item 3: Brown wall paint is on ceilings.

Brown paint spots on ceiling of master bathroom between skylight and west (W) wall. Poor paint cut-in between wall and ceilings in master bedroom/bathroom, living room, entry area, kitchen/dining area, and guest bedroom/bathroom and laundry room.

Complaint Item 4: White wall paint is on walls.

White paint/residue on east (E) wall of master bathroom closet room and, shut-off valve and water line for toilet. Poor paint cut-in between wall ceilings and, baseboards in master bedroom/bathroom, living room, entry area, kitchen/dining area, and guest bedroom/bathroom and laundry room. The following is representative of issues although many others are present; poor paint cut-in between walls and, baseboards in master bathroom closet room as an example of such and, white paint on north (N) wall of master bedroom on hinge side of door .

Complaint Item 5: Brown wall paint is on the white painted baseboards.

Poor paint cut-in between wall and, baseboards in master bedroom/bathroom, living room, entry area, kitchen/dining area, and guest bedroom/bathroom and laundry room.

Complaint Item 6: Brown wall paint is on white doors.

Brown paint spots on master bedroom door on bedroom side.

Complaint Item 7: Kitchen cabinets molding was painted brown.

Corner bead trim of wall and base cabinets on west (W) wall of kitchen to the right of stove have been painted color of walls, corner bead trim of wall cabinet on south (S) wall of kitchen has been painted color of wall and, corner bead trim of wall cabinet unit on north (N) wall of kitchen has been painted color of wall.

Complaint Item 8: Laundry Room cabinets molding was painted brown.

Corner bead trim of wall cabinet on south (S) wall of laundry room has been painted color of wall.

Complaint Item 9: Wall paint is streaky.

All areas in which work/painting was performed with the exception of the office and laundry room, that exhibit paint and sheen flashing/streaking on the walls.

Complaint Item 10: Windows have spots of brown wall paint on them.

Brown wall paint on window frame of single hung window on south (S) wall of living room and poor paint cut-in between window frame and wall.

Complaint Item 11: Door frames have spots of brown wall paint on them.

Brown wall paint on patio door frame (stiles) and upper track (rail) on south (S) wall of living room.

Complaint Item 12: Paint is on floor in the laundry Room.

White paint on floor in the laundry room floor between washer and south (S) wall, with poor paint cut in between baseboards and wall.

Complaint Item 13: Latches on the front door were painted and the paint needs to be removed.

Latch strike plates for front entry door have been painted.

Complaint Item 14: Need brown paint on 2 corners of granite in Master Bath.

Poor paint cut-in between wall and side splash and bull nose edge of counter on north (N) wall of master bathroom and, poor paint cut-in between wall and side splash and bull nose edge of counter on south (S) wall of master bathroom.

Complaint Item 15: There is paint on the front porch that needs to be removed.

Paint stains on tile of front porch leading to front entry.

Complaint Item 17: There is a sticky residue on the sidewalk (visible) were painter taped plastic that needs be removed.

Tape residue on tile of front porch leading to front entry.

Complaint Item 18: One room, the ceiling, crown molding, walls and baseboards has not been painted.

Office room ceiling, crown molding, walls and baseboards have not been painted.

Complaint Item 19: Screws are missing from the switch plates.

Three screws missing on double rocker switch plate in laundry room.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not make efforts to perform the corrective work outlined in the directive prior to the deadline set forth in the directive. After the deadline in the directive expired, Investigator Cruz was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B) and A.R.S. § 32-1158(B); and A.R.S. § 32-1154(A)(22).

Investigator Cruz testified that no corrective work was done prior to the directive deadline and that during the prehearing inspection on January 24, 2017, no work had been performed. Investigator Cruz indicated that the abandonment charge was related to the failure to complete the office; the departure from building codes charge was related to the failure to obtain a permit for the moved electrical switch; and the minimum elements of a contract charge related to the failure to include an estimated end date on the contract. Investigator Cruz acknowledged that Respondent’s license number was properly listed on the advertising and contract in the file and that charge was not supported.

Complainant testified that he paid Respondent a $1,000.00 deposit when the contract was signed and a $1,000.00 payment at the end of the first day. Complainant stated that he was told the project would take three to four days, but that Respondent to send a full crew to complete the job in a timely manner. Complainant indicated that he had a previously scheduled trip out of town the following week, but was assured the job would be done before that time. Complainant stated that on September 9, 2016, Mr. Blackshear told Complainant that he was done with him and would accept a final payment of $1,700.00 to be done with it.

Pamela Segal, Complainant’s wife, testified that during the September 8, 2016 meeting, she told Mr. Blackshear that she “wanted the fucking job done.” Ms. Segal denied any using any other profanity during the project.

Initially Mr. Blackshear testified Respondent was not contracted to paint the entire house, but eventually admitted that the 1500 square feet referenced in the contract would be the approximate size of the interior of Complainant’s home. Mr. Blackshear testified that someone else moved the electrical switch and Respondent only installed the drywall over the resulting hole prior to painting the wall. Mr. Blackshear also asserted that most contractors have no idea what the minimum elements of a contract are as insufficient information is provided to contractors by the Registrar. Mr. Blackshear represented that he had an audio recording of the September 8, 2016 meeting with Complainant and Ms. Segal, but did not wish to play it because Respondent was pursuing legal action against Complainant. Mr. Blackshear acknowledged the work in the photographs taken by Investigator Cruz during the jobsite inspection was work done by Respondent’s employees. Mr. Blackshear asserted that Ms. Segal created a hostile environment and he did not feel safe coming back. Mr. Blackshear stated he called Complainant to arrange a settlement after the directive was issued but did not indicate he was willing to perform the corrective work prior to the deadline in the directive.

Administrative notice is taken of Respondent’s prior License record on February 13, 2017. Such prior License record reflects that Respondent’s License No. 288366 was first issued on January 24, 2014, and is current. Such prior License record also reflects that there was one open complaint and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 evidence established that Respondent did not paint the office. Therefore, Complainant established that Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).

The evidence did not establish that Respondent moved the electrical switch such that Respondent would have been required to obtain a permit. Therefore, Complainant failed to establish that Respondent departed from building codes in violation of A.R.S. § 32-1154(A)(2).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent offered a financial settlement in which Complainant would pay Respondent $1,700.00, but did not attempt to compete the corrective work following the directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

The evidence established that the contract at issue did not include an estimated date the project would be compete. Therefore, Complainant established that Respondent’s contract did not have all the required elements of a contract in violation of 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 Order, the Registrar shall suspend Respondent’s License No. 288366 for a period of three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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.

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 40 days from the date of that certification.

Done this day, February 13, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors