ALJDEC decisions subject to certification as final

2016A-5171-NPC-ROC · Registrar of Contractors · 2017-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Blue Coyote Painting LLC,

COMPLAINANT,

v.

AAA Companies Inc,

License No: 297135

RESPONDENT.

No. 2016A-5171-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 27, 2017 held open until April 28, 2017

APPEARANCES: Chris Harvey for Complainant; Hans Shearer for Respondent; James Hart, witness for Respondent

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors. Based on the greater weight of the evidence adduced at hearing, the undersigned Administrative Law Judge finds that Respondent violated A.R.S. § 32-1154(A)(10) and that it is appropriate to impose a period of suspension until Respondent provides documentary proof that the full amount of the contract has been paid. The Administrative Law Judge also finds that it is appropriate to impose an additional 2 week suspension against Respondent’s licenses due to the severity of the violation.

FINDINGS OF FACT

Complainant subcontracted with Respondent to do painting on a home for $11,000.00. Respondent paid Complainant $5,500.00 but dismissed Complainant before the project was finished and refused to pay the remainder.

Complainant filed a complaint with the Registrar of Contractors and the matter was set for hearing with the Arizona Office of Administrative Hearings, an independent hearings agency.

Prior to the hearing, Respondent requested that the matter be moved from Tucson, where the parties reside, to Phoenix. Just prior to the hearing, Respondent requested to appear by telephone claiming that he had been sick with the flu and pneumonia, claims that he repeated at the hearing. Respondent admitted at the hearing that he only requested to move the hearing to Phoenix for the purpose of inconveniencing Complainant. When asked to provide proof that he was ill, Respondent merely went to an urgent care center and stated that he had sinusitis and then provided the documents he received to the Administrative Law Judge. Clearly, Respondent misused the hearing process to inconvenience Complainant needlessly and then lied to avoid going to the same inconvenience. Therefore, when Respondent offered his testimony and that of a witness, it was difficult to accord any credibility to them.

Respondent gave Complainant the wrong paint and then claimed that it was Complainant’s fault the house was painted the wrong color. Although Complainant repainted the home without charging Respondent, Respondent claimed that Complainant’s employee told him that he matched the paint to a can of paint that he had found. Respondent’s comment about this story was that it was “completely ridiculous,” which it is, and it is not credible because of that very fact.

Respondent demanded that Complainant repaint areas of the home where Respondent had required the stucco contractor to patch the stucco and then implied at hearing that this was Complainant’s problem.

Respondent claimed that Complainant failed to pressure wash and back roll the paint job. His statements about this were not credible either because he claimed he discovered this when having someone repaint the entire home. Repainting the entire home because of the issues Respondent complained about is not logical and therefore not believable.

Respondent failed to offer evidence of any problem with Complainant’s paint job that wasn’t merely a punch list item, even though it was clear that Respondent was greatly exaggerating his testimony.

Respondent’s witness’s testimony included detailed descriptions of work that he described as incomplete, inferior, or had overspray. His testimony, while not appearing outright false, was exaggerated. His description of the work as substandard was too subjective to amount to a valid defense. Further, his insistence that Complainant’s work was substandard was based on large part on Complainant’s failure to clean up overspray, a task Complainant was not given an opportunity to complete because, of course, cleaning up comes at the end of a job, and Complainant was dismissed before the project was complete. Therefore, Respondent’s witness’s testimony was too biased to be credible as well.

It should be noted that a worker from Arizona Painting Company, a licensed contractor, contacted Complainant to inform him that Respondent attempted to get him to say that Complainant’s paint job was inferior and to give a quote for the whole job when he found that the project required only about 2 days’ worth of touch ups. The gentleman, Bobby Dircks, agreed to put his concerns in writing, which Complainant submitted to the Registrar. Although Mr. Dircks did not testify in person, he is a disinterested party and his statement was accorded a certain amount of weight because it was consistent with Complainant’s credible testimony and because he was a disinterested party.

The greater weight of the evidence established that Respondent dismissed Complainant without cause and exaggerated the corrective work required by Complainant in order to support his refusal to pay Complainant the remaining amounts due on the project.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged a potential violation of A.R.S. § 32-1154(A)(10).

A.R.S. § 32-1154(A)(10) provides grounds for suspension or revocation of a contractor’s license for

Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The greater weight of the evidence in this matter clearly established that Respondent has violated A.R.S. § 32-1154(A)(10).

As of the writing of this recommendation, Respondent has two licenses, License Number 297135, which was suspended on April 14, 2017 for lack of bond, and License Number 297136, which was suspended on February 21, 2017 for lack of bond.

RECOMMENDED DECISION

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent Licenses, Nos. 297135 and 297136 shall be suspended until Respondent provides written proof to the Registrar that it has paid $5,500.00 in certified monies to Complainant or has otherwise resolved Complainant’s complaint for nonpayment to its satisfaction.

It is further recommended that Respondent’s license be further suspended after the completion of the initial suspension, if it is completed, for 2 additional weeks.

At the completion of the 2 week suspension, if it takes place, the complaint in Case No. 2016A-5171-NPC-ROC shall be closed.

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 2, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors