ALJDEC decisions subject to certification as final

2016A-4303-CHC-ROC · Registrar of Contractors · 2017-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard and Pat Chiccarella,

COMPLAINANTS,

v.

Midfair Painting Inc.,

License No. CR34.165159-D,

RESPONDENT.

No. 2016A-4303-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2017, at 8:30 a.m.

APPEARANCES: Pat Chiccarella appeared on behalf of herself and her husband, Richard Chiccarella (“Complainants”); Midfair Painting Inc. (“Respondent”) appeared through Christopher Irons, its qualifying party/officer.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about May 8, 2001, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR34.165159-D for dual painting and wall covering to Respondent.

On or about October 28, 2016, Complainants filed a complaint with the Registrar against Respondent alleging thirteen specific items of allegedly poor workmanship in Respondent’s performance of its contract to apply gel coat to the cabinets at Complainants’ house at 5504 E. Cannon Drive, Scottsdale, Arizona 85253. According to the complaint, Complainants had paid Respondent 90% of the contract price of $5,180.00, or a total of $4,670.00.

Complainants attached to their complaint Respondent’s September 29, 2016 proposal. The proposal included Respondent’s license number, but not the acronym “ROC,” and did not include an estimated date of completion or apprise Complainants of their right to file a complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), or the Registrar’s telephone number and website address.

The Registrar assigned the complaint to its Investigator, Matt Gunstra (“Investigator Gunstra”), for investigation. Investigator Gunstra performed a jobsite inspection and on November 17, 2016, issued a directive to Respondent to repair six of the thirteen items on Complainants’ complaint on or before 5:00 p.m. on December 2, 2016. The November 17, 2016 directive provided in relevant part as follows:

Complaint Item 2: Grain applied does not always match doors.

Complaint Item 3: The application of stain throughout whole job-sloppy, clumpy, [too] thick or too thin

-Product to be applied per MFR instructions and industry standards. Stain is excessive with drips in several areas.

Complaint Item 4: Back of cabinet doors are not finished

-Stain is also missing from backs of drawers

Complaint Item 5: In close areas no gel stain

Complaint Item 12: No polyurethane top coat despite instructions on can and company when I called

Complaint Item 13: Cabinets are peeling and sticky in spots

-Stain is not adhering to surface properly

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

After Respondent did not perform corrective work to comply with the November 17, 2016 directive, the complaint was referred to the Registrar’s Legal Department. On December 9, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(22), and A.R.S. § 32-1154(A)(12), namely A.R.S. §§ 32-1124(B) and 32-1158(B).

Respondent’s qualifying party/officer Mr. Irons filed a timely written answer to the Citation, stating that because Complainants did not wish for Respondent to return to resolve workmanship issues, he had agreed to pay another contractor to perform work to comply with the November 17, 2016 directive. However, Complainants had demanded that Respondent pay $7,540.00 to another contractor to completely strip off Respondent’s work and reapply the gel coat on the cabinets in Complainants’ house. Respondent refused to pay this amount because the work exceeded the scope on the November 17, 2016 directive.

An evidentiary hearing was held on February 23, 2017. Complainant Mrs. Chiccarella testified and presented the testimony of her son-in-law, James Regan. Mr. Irons testified on Respondent’s behalf. Apparently neither party had filed with the Registrar a written request that Investigator Gunstra testify at the hearing. The Administrative Law Judge informed the parties that she would take administrative notice of Investigator Gunstra’s jobsite inspection notes and November 17, 2016 directive.

Hearing Evidence

Mrs. Chiccarella testified that additional defects had appeared in the cabinet finish and that the appearance of the cabinets had continued to deteriorate since Investigator Gunstra performed the jobsite inspection. However, Complainants had not amended their complaint to allege and the Registrar had not had an opportunity to investigate additional deficiencies.

Mrs. Chiccarella and Mr. Regan testified that in their opinion, the decorative finish that Respondent had applied could not be repaired or salvaged and would have to be removed and reapplied.

Mr. Irons testified consistently with Respondent’s written answer. Respondent did not dispute the workmanship deficiencies found on the November 17, 2016 directive. Respondent had not attempted to perform repairs to comply with the directive because Complainants obviously did not want Respondent’s workmen in their house. Respondent had asked Complainants to obtain a bid on the corrective work outlined in the directive, but the bid that Complainants provided substantially exceeded the scope of the directive. Mr. Irons testified that Respondent remained willing to pay another contractor to perform the corrective work outlined in the directive.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website. Although the license has been administratively suspended twice for non-renewal, no discipline has ever been taken against the license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear 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.”

“Procedural due process requires notice and an opportunity to be heard in a meaningful manner and at a meaningful time.” The Uniform Administrative Hearings Procedures Act requires the Registrar to include in the notice of hearing “[a] short and plain statement of the matters asserted.” The complaint and any amendments thereto provides notice to the contractor of the workmanship items involved in the complaint. Because Complainants did not amend their complaint to allege any additional deficiencies, the Administrative Law Judge could not take evidence at the hearing on alleged deficiencies that were not included in the complaint without violating Respondent’s right to due process.

Complainants established that Respondent’s workmanship did not comply with the Registrar’s standards in the six specific deficiencies noted in the November 17, 2016 directive, thereby providing cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked. Here, Respondent did not attempt to perform repairs to comply with the directive, even though its license was current and in good standing and the repairs were within the scope of the license. Instead, Respondent attempted to reach a financial settlement with Complainants for the scope of work on the directive, but they demanded a much more extensive scope of work.

The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages. Complainants may file suite in a court of competent jurisdiction to resolve their claim against Respondent for damages.

Complainants’ intransigence on their demand for damages provides legal excuse for Respondent’s failure to pay another contractor to perform work to comply with the November 17, 2016 directive. Therefore, Complainants did not establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22).

The record establishes cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(12), namely, A.R.S. §§ 32-1124(B) and 32-1158(B) because Respondent’s September 29, 2016 proposal did not include Respondent’s license number, preceded by the acronym “ROC,” or an estimated date of completion, did not advise Complainants that they had the right to file a complaint with the Registrar against Respondent for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), and did not provide the Registrar’s telephone number or website address. Although Respondent should make sure that its proposal and contract forms comply with the Registrar’s statutes, Respondent’s violations were technical and did not cause Complainants to suffer any identifiable damages.

/ / / /

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. CR34.165159-D of Respondent Midfair Painting Inc. shall be suspended for a period of one calendar day.

It is further recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form proposal and contract that has been revised to comply with the requirements of A.R.S. §§ 32-1124(B) and 32-1158(B). If Respondent fails to provide proof that it has so revised its form proposal and contracts, it is recommended that Respondent’s licenses be suspended for an additional three days.

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, February 23, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors