ALJDEC decisions subject to certification as final
2016A-4563-CHC-ROC · Registrar of Contractors · 2017-05-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kathie Jacobsen,
COMPLAINANT,
v.
Valnicek's Painting, Inc.,
License No. CR34.179600-D,
RESPONDENT.
No. 2016A-4563-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 17, 2017, at 8:30 a.m.
APPEARANCES: Kathie Jacobsen (“Complainant”) was represented by Kenneth B. Vaughn, Esq., Grant & Vaughn, P.C.; Valnicek’s Painting, Inc. (“Respondent”) was represented by Jason Clark, Esq., Lang & Klain, P.C.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
On or about October 22, 2002, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR34.179600-D for dual painting and wall covering to Respondent.
On or about November 16, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work on its contract to paint the exterior of Complainant’s house at 30202 N. 48th St., Cave Creek, Arizona 85331. Complainant stated that she had paid Respondent $275.00 minus $75.00 for damage on Respondent’s $2,800.00 contract.
The Registrar assigned the complaint to its Investigator, Ted Stodder (“Investigator Stodder”) for investigation. On January 3, 2017, Investigator Stodder performed a jobsite inspection.
On January 3, 2017, on behalf of the Registrar, Investigator Stodder issued a Directive that required Respondent to correct the following workmanship deficiencies:
Complete exterior paint on wall and home in a professional workmanlike manner.
Clean overspray off roof tile.
The deadline for Respondent to comply with the January 3, 2017 Directive was February 3, 2017, at 5:00 p.m.
The January 3, 2017 Directive also informed Respondent as follows:
If your license 179600 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.
According to the Registrar’s public website, Respondent’s license was current and in good standing on January 3, 2017.
After Complainant informed Investigator Stodder that Respondent had not complied with the Directive, he sent the complaint to the Registrar’s Legal Department. On February 7, 2017, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).
Respondent filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that after Respondent had nearly completed the repairs required by the January 3, 2017 Directive, Complainant kicked Respondent off her property.
The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on May17, 2017. Complainant submitted six exhibits, testified on her own behalf, and presented the testimony of her friend, Phil Beck. Respondent submitted 15 exhibits and presented the testimony of its former officer, George Valnicek, Jr. (“Mr. Valnicek”). Investigator Stodder also testified.
Additional Hearing Evidence
Complainant testified that in July 2016, she replaced the roof underlayment and many of the roof tiles on her roof.
Mr. Valnicek’s father, George Valnicek, Sr. (“Mr. Valnicek, Sr.”) submitted the bid for and, with a laborer, performed the contract for the painting job at Complainant’s house on three days in mid-October 2016.
On or about October 10, 2016, Complainant wrote a check to Respondent for $2,500.00 for its work. However, on October 13, 2016, she stopped payment on the check. On October 14, 2016, Complainant issued a check in the amount of $225.00 to Respondent, but as of the date of the hearing, it had not cashed the check.
On or about November 4 and 12, 2016, Mr. Valnicek contacted Complainant to inform her that his father, Mr. Valnicek, Sr., had suffered a stroke and to arrange a final walk-through and touchup at the job at her house. Complainant did not respond to the emails but, as noted above, filed the complaint with the Registrar against Respondent’s license on November 16, 2016.
Due to the stroke, Mr. Valnicek, Sr. was not involved in Respondent’s attempts to correct the exterior paint on Complainant’s house after she filed the complaint.
Complainant is a flight attendant for a major airline who is based in Los Angeles, California, even though her home is in Cave Creek. She testified that because she must submit bids for the flights that she wants to work the next month on the 21st of the preceding month, it is difficult for her to schedule time to attend to other matters.
According to the Registrar’s communication log, in a telephone conversation on November 28, 2016, Complainant informed Investigator Stodder that she was not sure if she wanted to let Respondent back to finish its work. Investigator Stodder informed her that she was required to allow Respondent to complete and repair its work if she was going to go through the Registrar’s process.
Investigator Stodder testified that he had to reschedule the initial jobsite inspection several times due to Complainant’s unavailability. Although Mr. Valnicek appeared at the January 3, 2017 jobsite inspection on Respondent’s behalf, Complainant refused to allow him onto her property. Investigator Stodder met with Mr. Valnicek on the street to discuss the inspection afterwards.
Investigator Stodder explained that although the Registrar usually only allows a contractor fifteen or seventeen days to comply with a Directive, he allowed Respondent 30 days due to Complainant’s limited availability.
On January 9, 2017, Mr. Valnicek sent an email to Complainant to schedule time for Respondent to perform repairs to comply with the January 3, 2017 Directive.
On January 9, 2017, Complainant’s attorney sent a letter to Investigator Stodder, complaining that among other things the Directive “does not adequate describe the necessary steps to remedy the painter’s deficient work including, without limitation, the grievous error of spray painting the edges of Ms. Jacobsen’s new roof tiles for which she paid some $15,000 in July 2016.”
Complainant’s attorney’s January 9, 2017 letter also informed Investigator Stodder that because the corporate licensee had been dissolved on August 22, 2013, Respondent’s license had been suspended by operation of law.
Complainant’s attorney’s January 9, 2017 letter to Investigator Stodder was not copied to Respondent. Mr. Valnicek credibly testified that Respondent did not know that Complainant’s attorney was trying to get the Registrar to administratively suspend Respondent’s license during the time that it was attempting to schedule time to perform repairs to comply with the January 3, 2017 Directive.
Investigator Stodder testified that he advised Complainant’s attorney that because the Registrar’s Investigations Department was not responsible for administratively suspending a contractor’s license, the attorney should address his concerns to another Department.
On January 11, 2017, Complainant’s attorney responded to Mr. Valnicek’s January 9, 2017 email that requested dates on which it could perform corrective action. Complainant’s attorney stated that he could not provide dates for Respondent to begin corrective work because Complainant was out of town and “we are waiting on information concerning how to clean the 185 roof tiles that were painted (and if cleaning is possible at all) so that we have a mutual understanding of how to address that issue.”
On January 11, 2017, Mr. Valnicek responded to Complainant’s attorney’s email, requesting that he inform Respondent when Complainant would be available so that Respondent could coordinate its crew’s schedule with hers. On January 12, 2017, Complainant’s attorney responded that “[w]e will let you know a date once we have the information we need on how to fix the paint on the 185 roof tiles.”
On January 25, 2017, Complainant’s attorney sent a letter directly to the Director of the Registrar, stating that Complainant was concerned about how the Registrar was handling her complaint and that Respondent should not be allowed to attempt to comply with the January 3, 2017 Directive because the corporate licensee had been dissolved on August 22, 2013. The letter was not copied to Respondent.
On January 25, 2017, Mr. Valnicek sent an email to Complainant’s attorney, offering to resolve Complainant’s complaint by walking away from the job and not seeking any payment from Complainant.
On January 27, 2017, Complainant’s attorney sent an email to Mr. Valnicek on her behalf, declining Respondent’s offer but informing it that she would allow it access to perform corrective work to comply with the January 3, 2017 Directive on January 30, 2017, through February 1, 2017, from 9:00 a.m. to 5:00 p.m. Complainant’s attorney attached to his email a 35-item punch list that provided detailed instructions on the repairs that she expected.
Respondent sent a three-man crew to Complainant’s house on January 30, 2017, to begin repairs. Mr. Valnicek testified that Respondent usually begins work at 7:00 or 8:00 a.m. and that his father, Mr. Valnicek, Sr. instructed him to give Complainant the “gold standard” treatment and to completely repaint the exterior of her house. Photographs that Complainant submitted showed that during Respondent’s attempted repairs, it re-caulked the house, completely redid stucco patches, and began cleaning the roof tiles. Respondent’s crew used brushes with soft brass bristles to clean the tile and a commercial solvent because Complainant would not allow it to use a grinder, which would have been much faster.
Mr. Valnicek testified that Respondent could have completed corrective work by noon on February 2, 2017. On February 1, 2017, however, Complainant informed Mr. Valnicek and Respondent’s crew that because its license was suspended, it could not perform work and had to leave her property.
Mr. Valnicek testified that he did not know that the Registrar had administratively suspended Respondent’s license until Complainant so advised it. Mr. Valnicek testified that the Registrar had told his wife that steps could not be taken to reinstate Respondent’s license while Complainant’s complaint was pending.
Mr. Valnicek explained that on February 14, 2013, Mr. Valnicek, Sr. made the decision to change the corporate licensee into a limited liability company based on Respondent’s accountant’s bad advice. Mr. Valnicek testified that he did not know of any problem that his father’s decision to change Respondent’s business entity could cause until Complaint informed him on February 1, 2017, that Respondent’s license was administratively suspended.
Mr. Beck held a contractor’s license and was a custom home builder in Gold Canyon between 1998 and 2005. He has been close friends with Complainant for 18 years and has been to her house many times. Mr. Beck testified that he was onsite during most of the time that Respondent attempted to comply with the January 3, 2017 Directive, trying to act as Complainant’s “roving supervisor.”
Mr. Beck testified that the tiles on Complainant’s roof has a decorative dye on the surface that would be removed with the overspray. Mr. Beck testified that there was still paint in the crevices of the tiles from which Respondent’s crew had attempted to remove overspray. Mr. Beck testified that he contacted the manufacturer of the tile and was informed that the overspray could not be removed from the tiles without damaging the tiles, that the tiles would need to be replaced, and because the tiles were no longer being manufactured, that the entire tile roof would need to be replaced. Complainant submitted a proposal from Lyons Roofing in the amount of $28,300.00 to replace the tile roof.
Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website on this date. On January 30, 2017, Respondent’s license was administratively suspended for corporate dissolution. Although Respondent’s license has been twice briefly administratively suspended for lack of bond or failure to timely renew in the past, the license has never been disciplined. Complainant’s complaint is apparently the only complaint pending against the license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears 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.”
Complainant established that Respondent’s initial job painting the exterior of her house did not comply with the Registrar’s or industry standards. Complainant thereby potentially established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.
Because construction is not a perfect art, contractors generally must be afforded at least one reasonable opportunity to correct their deficient work before their licenses may be suspended or revoked. Because licensed contractors are presumed to have the expertise to determine appropriate repairs due to their licensure, property owners are not allowed to dictate the actions that contractors must take to comply with a Registrar’s directive.
Respondent established that Complainant refused to provide reasonable access for it to comply with the January 3, 2017 Directive until the last three days allowed, that Complainant repeatedly attempted to dictate the method of repair, and that although Respondent attempted to perform at least some of the repairs that Complainant required, the time allowed was not sufficient for the repairs to be made. Finally, Respondent established that Complainant and her attorney managed to have the Registrar administratively suspend Respondent’s license for the sole purpose of gaining an advantage in the prosecution of her complaint and obtaining her desired remedy. Complainant therefore did not establish cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(22).
The Registrar should not reward Complainant’s gamesmanship by revoking Respondent’s license based on its inability to comply with the Directive due to her actions and a clerical error that Respondent made over three years before it contracted to and performed the work for Complainant. Complainant may seek her damages in a judicial forum.
RECOMMENDED ORDER
Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainant Kathie Jacobsen’s complaint in Case No. 2016-4563 against Respondent Valnicek’s Painting, Inc.’s License No. CR34.179600-D shall be dismissed based on denial of access to perform repairs to comply with the Registrar’s Directive, without prejudice to Complainant’s right to make a claim in a judicial forum to recover her damages.
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, May 23, 2017.
/s/ Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors