ALJDEC decisions subject to certification as final

2016A-3653-ROC · Registrar of Contractors · 2017-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Hauser,

COMPLAINANT,

v.

Diamond Painting Inc,

License No: 277252, 288550,

RESPONDENT.

No. 2016A-3653-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 18, 2017

APPEARANCES: Complainant appeared on behalf of himself. Don Tellefsen appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

On December 2, 2016, the Registrar of Contractors (hereinafter “ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 18, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Diamond Panting, Inc. (hereinafter “Diamond”), holds license numbers 277252 and 288550 issued by ROC. Diamond’s qualifying party is Don Tellefsen.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, ROC alleges that Diamond may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that either subsection has been violated, ROC may suspend or revoke Diamond’s license.

Complainant David Hauser, (hereinafter “Mr. Hauser), owns a commercial property located at 2633 N. 36th Avenue in Phoenix, Arizona.

On or about January 14, 2016, the parties entered into a contract to paint the exterior painting of Mr. Hauser’s property.

On or about February 2, 2016, Diamond began work on the property.

On or about February 11, 2016, Diamond stopped working on the property.

In August of 2016, Complainant contacted Diamond and informed him that that there was a problem with the paint on the metal doors. Diamond’s qualifying party, Don Tellefsen, told Complainant that he would not be able to respond immediately because his family member was ill. However, Mr. Tellefsen sent his Sherwin Williams representative to review the matter. Mr. Tellefsen testified that the Sherwin Williams representative went to the property and assessed the condition of the doors. Mr. Tellefesen testified that the representative told him that there was no paint failure.

On September 19, 2016, ROC received a complaint from Mr. Hauser alleging deficiencies on Diamond’s part.

On October 5, 2016, in response to Mr. Hauser’s complaint, ROC Investigator Matt Gunstra (hereinafter “Mr. Gunstra”) conducted a job-site inspection.

On October 5, 2016, Mr. Gunstra 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:

Complaint Item 1: Metal doors were not primed and painted properly. Door paint bubbling and peeling and cracking

-Paint on doors is not bonding properly and is peeling away in many areas. Paint is easily removed in areas not yet peeling indicating improper prep/prime.

Complaint Item 2: Concrete walls not painted completely

-Overspray on glass and other surfaces not intended to receive paint

-Transition from dark paint to light paint not cleanly made in some areas

-Paint drips/runs in several areas

-Several areas of wall paint and metal surface paint are thin and do not completely cover the surface

Complaint Item 3: Grass and plants painted to the walls

-Areas of walls not painted at lower sections

Complaint Item 4: Walls not caulked at all cracks

-Some expansion joints not caulked

-Concrete cracks in certain areas are not filled or prepped prior to painting

The Directive stated that the above work had to be completed by 5:00

p.m. on October 21, 2016.

On October 25, 2016, Mr. Gunstra performed a compliance inspection at

Complainant’s property. Mr. Gunstra found that Respondent failed to repair Complaint Items 1, 2 and 4 to an acceptable standard. Mr. Gunstra stated in his October 25, 2016 Compliance Inspection Notes, “Some work appears to have been started but not completed including partial joint filling, paint touch ups, and prep work.”

Diamond’s position was that it could not complete the repairs to the concrete wall and expansion joints because Mr. Gunstra did not specify which areas of the concrete wall and expansion joints needed repair. Diamond also contended that that the bubbling and peeling of the paint was not caused by the work he performed on the doors. Mr. Telefsen testified that his Sherwin Williams representative told him that the paint will fail if the doors are left completely shut. Mr. Telefsen testified that the bubbling and peeling may have also been caused by a chemical that may have been used when the metal doors were sealed shut.

Chris Springer, (hereinafter “Mr. Springer”), an employee of Diamond, testified that he went to the property to perform repairs after the Directive was issued and prior to the October 21, 2016 deadline. Mr. Springer testified that he began scraping and sanding the doors where the paint was peeling. Mr. Springer testified that Mr. Hauser told him that he had to remove all of the paint off the doors. Mr. Springer testified that all of the paint could not be removed without pressure washing. Mr. Springer testified that Mr. Hauser told him that he could not pressure wash the doors. As a result, Mr. Springer left the property.

Diamond also had admitted a letter dated October 12, 2016 written by Mr. Hauser in support of its contention that Mr. Hauser would not allow Diamond to pressure wash the doors. The letter was received by the Registrar on October 17, 2016.

The letter provides, in relevant part, as follows:

The following points should be noted to prepare properly:

All exterior doors cannot be opened and many have been hermetically sealed since the original project in February. The two roll-up-doors on the North east side of the building have insulation inside and cannot be pressure washed as the force of water would get the insulation wet and cause mold issues. The doors would need to be sanded to remove the remaining old paint to prime them properly. The glass doors of the north warehouse have also been insulated and care must be taken to avoid water from getting inside on the insulation and possible mold issues.

Regarding the other overhead or man doors, precautions must be taken by the painter to prevent water from entering inside the building and damaging property or inventory.

The building does not have exterior hose bibs (same as February) and several hundred feet of hose is required to extend from the janitor closet in the warehouse to the exterior points. Please come prepared and again care must be taken to avoid getting water inside the building (hose leaks or faulty hoses or connections). Assets/ inventory must be protected from any type of damage by the contractor.

Mr. Hauser testified that Diamond’s Sherwin Williams representative told him that there was no paint failure. However, Mr. Hauser testified that the representative told him in person that the paint was peeling because primer was not used.

Mr. Hauser also testified that he never told Mr. Springer that he could not use a pressure washer on any part of the building. However, Mr. Hauser did not deny demanding that Mr. Springer remove all of the paint off the doors. Mr. Hauser contended Diamond did not acceptably repair the items listed in the Directive and did not use primer when it performed the paint job. Mr. Hauser also testified that no chemical was used to seal the metal doors.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. (Underscore added.)

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The preponderance of the evidence shows that the work by Respondent

was not in compliance with the Registrar’s workmanship standards. Therefore, Mr. Hauser established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

11. Regarding a violation of A.R.S. § 32-1154(A)(22), a contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(22).[1] Respondent raised valid concerns that Mr. Hauser demanded that all of the paint be removed from the doors which contained bubbling, peeling and cracking. Because Mr. Hauser insisted that the work be corrected by a specific means, Respondent was not afforded a meaningful opportunity to correct its work. Accordingly, the Tribunal finds that Respondent’s failure to repair Complaint Item 1 listed in the directive should not form the basis of an A.R.S. § 32-1154(A)(22) violation.

12. An A.R.S. § 32-1154(A)(22) violation is, however, warranted given Respondent’s failure to correct Complaint Items 2 and 4 by appropriate means. Although Mr. Tellefsen contended that Mr. Gunstra was not specific regarding which area of the wall and expansion joints needed repair, the Tribunal finds that the Directive was sufficiently descriptive regarding the defects to enable the Respondent to repair the work.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 277252 and 288550 of Respondent Diamond Painting, Inc. shall be suspended for a period of three calendar days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty.

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 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 7, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors