ALJDEC decisions subject to certification as final

2016A-529-ROC · Registrar of Contractors · 2016-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2016, at 10:00 a.m. APPEARANCES: Estevan Sandoval (“Complainant”) appeared on his own behalf; JT Painting, Inc. DBA: Freshcoat Glendale (“Respondent”) appeared through Johnathan Thomas Trainor, an officer (“Mr. Trainor”). ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about June 16, 2015, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR34.299408-D for dual painting and wall covering to Respondent. 2. On or about February 12, 2016, Complainant filed a complaint with the Registrar against Respondent alleging poor workmanship in Respondent’s performance of its contract to paint Complainant’s house at 14806 W. Windsor Ave., Goodyear, Arizona 85395. 3. Complainant indicated on the complaint that he had paid Respondent $700.00 of the $3,506.97 contract amount. 4. The Registrar assigned the complaint to its investigator, Stephen Lawton (“Investigator Lawton”), for investigation. Investigator Lawton performed a jobsite inspection and on April 25, 2016, issued a Directive to Respondent to perform certain repairs on or before 5:00 p.m. on May 27, 2016. The April 25, 2016 Directive provided in relevant part as follows: 1. Exterior walls have heavy stucco surfaces and . . . the paint does not have consistant coverage over the stucco. Correct by Appropriate Means.

2. Pop outs were not masked properly; therefore the paint finish created over spray requiring edges to be redone.Correct by Appropriate Means.

3. All eve surfaces were not completely painted. Correct by Appropriate Means.

4. The back of the [fascia] boards should be painted to protect boards from deteriorating the weather. Correct by Appropriate Means.

5. Exterior doors located at rear patio and side garage had to be re-painted twice due to over spray and heavy blotching of the paint surfaces and edges of the doors did not receive any paint. Correct by Appropriate Means.

6. Areas at the base of the patio footings had not been painted and at the base of the exterior doors. Correct by [Appropriate] Means.

7. Extensive paint damage to the pre-existing pavers and cement walkways. Correct by [Appropriate] Means.

8. Paint on [fascia] stone of the fireplace. Correct by [Appropriate] Means.

9. Extensive touch-up throughout existing paint surfaces. [Front] door and trim, all light fixtures, all trim around windows, doors and popouts. Correct by [Appropriate] Means.

10. Clean up and removal of masking tape and glue from the tape has left sticky residue on the window frames along with pieces of tape still on the window frames. Correct by [Appropriate] Means.

5. On June 8, 2016, Investigator Lawton performed a compliance inspection. Inspector Lawton’s Compliance Jobsite Inspection Notes indicate that Respondent had not resolved any of the complaint items except item nos. 6 and 10. Inspector Lawton referred the matter to the Registrar’s Legal Department. 6. On June 9, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to revoke, suspend, or otherwise discipline 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). 7. Respondent filed a timely written answer to the Citation, alleging that it wanted to correct the workmanship deficiencies on Complainant’s project to protect its reputation. 8. An evidentiary hearing was held on August 15, 2016. Complainant submitted ten exhibits, testified on his own behalf, and presented the testimony of his partner, Ana Vega Tantalean. Respondent presented Mr. Trainor’s testimony. Investigator Lawton also testified. Hearing Evidence 9. Mr. Trainor did not dispute that Respondent’s work required correction. Mr. Trainor testified that on January 28, 2016, he had attempted to perform a final inspection with a representative of his paint supplier to determine the cause the deficiencies and to formulate a punch list. Mr. Trainor played a video that showed that on that date, Complainant demanded that Mr. Trainor and his supplier’s representative leave the property. Mr. Trainor called the Administrative Law Judge’s attention to an undated letter from the sales representative for Sherwin Williams Paint to Respondent that provided in relevant part as follows: On the following date, 1/28/2016, A representative from the Sherwin-Williams company attempted to perform a site inspection of your home located at; 14806 W. Windsor Ave, Goodyear, AZ, 85395. The purpose of this site inspection was to go over the areas of concern and to expedite the time necessary to fix the areas the customer found to be in breach of contract. This Site inspection is also intended to expedite the process by which the customer is able to return to the normal use of their home, as the painting process may Limit the usage of some areas.

Unfortunately, on the date of the Site inspection was to be performed, we were unable to carry out the inspection, per the wishes of the homeowner. This being the case, Sherwin- Williams will have to deny the contractor of supplies they need from us, the supplier, for the purpose of fixing the areas in question. We would be happy to return at a later date to perform a Full site inspection, which would in turn allow us to warranty our product. Although until that inspection takes place, we cannot provide any further assistance to Fresh coat painting, The Contractor, in his attempts to remedy the problems pointed out by the customer, for the completion of this contract.[1]

10. Investigator Lawton testified that Complainant stated that he did not allow the Sherwin Williams representative at the jobsite because his complaint was not about the paint that Respondent used on the project. 11. Investigator Lawton acknowledged that Complainant stated that he would not allow Respondent access for repairs, but testified that he informed Complainant that he was required to provide access. Investigator Lawton response to Complainant’s question about whether he had denied access to Respondent to perform repairs was, “Not that I know of.” 12. Complainant submitted Respondent’s email dated May 7, 2016, at 7:20 a.m. in which it estimated that repairs would take one day or possibly two days to complete and proposed the dates of May 17, 2016, May 20, 2016, and May 23, 2016. On May 9, 2016, Complainant responded as follows: Friday, May 20, 2016 is the start date that will work best given our existing plans and schedules for May.

The property will be accessible between the hours of 8 am and 5pm only. No work (to include clean-up) will be done after 5 p.m.

Based on your email, it is my understanding that you will complete the directive compliance in 1 day.[2]

13. Ms. Vega Tantalean testified that Respondent’s crew only worked six hours between 6:30 a.m. and 12:30 p.m. on May 20, 2016, and did not complete the repairs. 14. Mr. Trainor testified that it was over 100º on May 20, 2016, and that it was too hot for the crew to continue painting. Mr. Trainor testified that because he wanted Respondent to be able to attempt to correct the painting the right way, he attempted to contact Complainant to schedule completion of the repairs, Complainant refused to return his emails or telephone calls. 15. Pursuant to A.A.C. R4-9-117, administrative notice is taken Respondent’s disciplinary history on the Registrar’s public website. On August 11, 2016, Respondent’s license was current and in good standing. Complainant’s complaint was apparently the only complaint pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] 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.”[7] 4. Mr. Trainor acknowledged that Respondent performed poor work in performing its contract to paint Complainant’s house and that the poor work has not been fully corrected. Therefore, cause potentially exists under A.R.S. § 32-1154(A)(3),[8] namely A.A.C. R4-9-108,[9] to discipline Respondent’s contractor’s license. 5. Construction is not a perfect part and, generally, a contractor must be afforded an opportunity to correct its work before the Registrar will discipline the contractor’s license as a result of the poor work. A homeowner’s refusal to provide reasonable access for a contractor to perform repairs is a legal justification for the contractor’s failure to comply with the Registrar’s directive. Lack of access therefore is an affirmative defense to what otherwise might have been a violation of A.R.S. § 32-1154(A)(22)[10] that the contractor bears the burden to establish. 6. The issue of access is a close one. It was clear at the hearing that Complainant did not want Respondent to perform any additional work at his house and only grudgingly provided any access whatsoever. Respondent established that corrective work would require more than a half day, that it was not possible to perform repairs into the afternoon of May 20, 2016, due to excessive heat, and that Complainant only intended to allow access on May 20, 2016. Mr. Trainor credibly testified that Complainant refused to return his emails and telephone messages requesting access to allow Respondent to complete repairs. Therefore, Complainant did not establish cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, Complainant Estevan Sandoval’s complaint in Case No. 2016-529 against Respondent JT Painting, Inc. DBA: Freshcoat Glendale’s License No. CR34.299408-D shall be closed for denial of access.

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, September 2, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Registrar’s electronic file at Insp Correspondence From Respondent6.pdf. [2] Complainant’s Exhibit 3. [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [9] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [10] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826