ALJDEC decisions subject to certification as final

2016A-4141-CHC-ROC · Registrar of Contractors · 2017-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Keith Morris,

COMPLAINANT,

v.

RAE LLC dba,

CertaPro Painters of Ahwatukee Chandler,

License No: 301261

RESPONDENT.

No. 2016A-4141-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 6, 2017

APPEARANCES: Complainant Keith Morris appeared on his own behalf. Kevin Rogers, Owner and Qualifying Party, appeared on behalf of Respondent RAE LLC doing business as CertaPro Painters of Ahwatukee Chandler.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

RAE LLC doing business as CertaPro Painters of Ahwatukee Chandler (Respondent) is the holder of License No. 301261 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 19, 2016, Keith Morris (Complainant) entered into an agreement with Respondent for the painting of the exterior of his home at 15120 East Wood Drive, Chandler, Arizona for the base cost of $2591.00 with various options available for additional costs.

On or about October 19, 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 Randy Cason. On After a jobsite inspection, Investigator Cason 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 12/13/2016.

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

Complaint Item 1: “Above on the front south wing of the house a long area has not been painted”

Area of eave above the master closet

Window on the north side of the house has masking paper on the top corner of the window frame

Complaint Item 2: “Instead of cleaning the area they were contracted to clean and repaint, an unoccupied Mud Dobbers nest was painted over”

Complaint Item 3: “The electrical light bulbs they removed they did not replace”

Complaint Item 8: “On the front entry cement they left paint spots and smudges”

Complaint Item 11: “The utility boxes show excessive paint that has flowed incorrectly in various areas on the boxes”

The areas the complainant has concerns about; are not paint runs but is the finish surface of the metal electrical panel box itself. I did verify that the respondent has over spray on the glass meters and areas were the paint does not cover uniformly

Complaint Item 15: There is an area in the green house that should have been painted but was not painted”

Area of wall and ceiling in the green room that was not paint, next to large plant by window

Paint drops on the concrete slab in the green house.

Paint on the curtains brackets and curtains in the green house

Areas on the exterior stucco in the green room that need touch up paint repairs in the stucco expansion joints and around the window frames

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

On November, 30, 2016, Respondent emailed Complainant indicating that it wished to conduct the corrective work outlined in the written directive on December 6, 2016. On December 1, 2016, Complainant responded that before Respondent was allowed to perform the corrective work, it “must first give [Complainant] a detailed description of what work you will do.” The email went on to request a great deal of information as to the specifics of the work to be done. Respondent replied that it would only perform the corrective work directed in the letter from Registrar and that it would not perform any additional work Complainant requested. Respondent then proposed to do the corrective work on December 9, 2016. On December 8, 2016, Complainant responded with the statement, “SUFFICE IT NOW TO SAY, AGAIN: DO NOT TRESPASS ON 15120 EAST WOOD DR. CHANDLER.”

On December 13, 2016, Investigator Cason explained to Complainant that denying Respondent access to the property could result in the complaint being dismissed. Complainant expressed to Investigator Cason that he was concerned Respondent would screw up the job more, but that he was willing to let Respondent access the property to complete the work required under the contract. Investigator Cason extended the deadline for Respondent to complete the corrective work to January 3, 2017.

After the deadline was extended, Respondent emailed Complainant offering to perform the corrective work on December 30, 2016, and/or on January 12, 2017. While Complainant initially agreed to let Respondent perform the corrective work on December 30, 2016, Complainant emailed Respondent on December 29, 2016 with the message “YOU ARE HEREBY NOTIFIED NOT TO COME TO 15120 E. WOOD DR. CHANDLER TOMORROW FRIDAY DECEMBER 30, 2016. I WILL ADVISE YOU LATER OF WHEN YOU CAN COME FINISH THE WORK AS CALLED FOR IN THE CONTRACT. KEITH MORRIS”

After the extended deadline expired, Investigator Cason was notified no corrective work had been performed.

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

Investigator Cason testified that he did not substantiate several of the issues Complainant raised in his complaint and that only those items identified in the written directive were found to be out of compliance with the workmanship standards.

Complainant testified that until Respondent would tell him what he was going to do and how, he would not let it on the property. Complainant acknowledged that Respondent contacted him to perform the corrective work identified in the written directive, but that he would not let Respondent on the property because it stated it was only going to address the issued in the written directive and not all of issues he raised in his initial complaint.

Kevin Rogers, Respondent’s Owner and Qualifying Party, testified that he attempted to reach out to Complainant after the job was completed, but Complainant became nonresponsive, and Respondent had to sue for payment on the contract. Mr. Rogers stated that he did not disagree with Investigator Cason’s finding in the written directive and that Respondent was prepared to perform that work. Mr. Rogers stated that prior to the complaint being filed, Respondent was willing to address all of Complainant’s concerns, but after the complaint was filed and Investigator Cason made his findings, Respondent was only willing to address those items in the written directive. Mr. Rogers stated that he had made numerous attempts to perform the corrective work, but Complainant would not allow them on the property.

Administrative notice is taken of Respondent’s prior License record on March 27, 2017. Such prior License record reflects that Respondent’s License No. 301261 was first issued on October 6, 2015, and is current. Such prior License record also reflects that there was no prior complaints or discipline 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 attempted to compete the corrective work following the Directive being issued, but that Complainant would not allow Respondent to enter the property. Rather, Complainant demanded that Respondent correct all of the issues in the complaint despite the fact that Investigator Cason did not find them to be violations of the workmanship standards and did not instruct Respondent to address them. Because Complainant did not allow access for Respondent to comply with the written directive, he did not establish that Respondent violated A.R.S. § 32-1154(A)(22).

While there were workmanship issues as identified in the written directive, Respondent is not expected to perform flawless work without an opportunity to correct it. Absent that opportunity to correct the work, Respondent cannot held responsible for those issues identified in the written directive. This Tribunal concludes that the preponderance of the evidence of record was insufficient and failed to support a conclusion that Respondent violated the charged provisions of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. 32-1154(A)(22).

RECOMMENDED ORDER

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Keith Morris’s complaint in Case No. 2016-4141 against Respondent RAE LLC doing business as CertaPro Painters of Ahwatukee Chandler’s License No: 301261 based on Complainant’s failure to provide Respondent access to comply with the written directive.

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, March 27, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors