ALJDEC decisions subject to certification as final
2016A-941-ROC · Registrar of Contractors · 2016-09-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lee and Jocelyn Smith,
COMPLAINANT,
v.
Marmor Enterprises LLC dba,
Certa Pro Painters Of The West Valley,
License No: 238232
RESPONDENT.
No. 2016A-941-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Wednesday, September 13, 2016 @ 1:00 PM
APPEARANCES: Jocelyn Smith (“Complainant”); Lee Smith (“Complainant”); Jennifer Marmor (“Respondent”); Nathan Marmor (“Respondent”); Matthew Meaker (“Counsel for Respondent”); Jose Fernando Saavedra (“Witness” for Respondent and representative of Stucco by Fernando, Inc.); and Stephen Lawson (“Investigator” for the Registrar of Contractors).
ADMINISTRATIVE LAW JUDGE: Linda Marie Brown
_____________________________________________________________________
This matter was set by the Registrar of Contractors as a hearing to determine whether Respondent has violated Rule 4-9-108, “minimum construction standards” of the Arizona Administrative Code (“AAC”), and thereby of Arizona Revised Statutes (“A.R.S.”) § 32-1154 (A)(3) and A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action without valid justification.).
FINDINGS OF FACT
The Arizona Registrar of Contractors (“Registrar” or “ROC”) issued License No. CR34-238232.D to Respondent, Marmor Enterprises, LLC DBA: CertaPro Painters of the West Valley. Respondent’s address of record is P.O. Box 956, Litchfield Park, Arizona 85340.
Complainants, Lee and Jocelyn Smith, are residential homeowners. On or about March 21, 2016, Complainant filed a complaint with the Registrar alleging that on May 20, 2014, Respondent contracted with Complainant a project involving exterior paint on a residential property. The contract amount was $2,000.00, of which all was paid in cash by Complainant to Respondent. The date work started was June 28, 2014, and work stopped on June 30, 2014.
Complainant provided an address of 18430 West San Carlos Drive, Goodyear, Arizona 85338 as the address of the person filing the Complaint with the Registrar.
On May 3, 2016, Notice of Complaint and a copy of the Complaint were sent to the Respondent at its address of record.
On May 17, 2016, Respondent provided a timely answer to the Complaint addressing each of the items listed in Complainant’s Complaint. Respondent’s Answer was received by the Registrar on May 20, 2016.
The Registrar scheduled a jobsite inspection. This jobsite inspection took place on May 23, 2016, with both parties present. The Investigator inspected and observed nine (9) complained of issues: (1) stucco damage to the north ans [sic] south walls of residence; (2) broken tiles above entry way tower on southside; (3) hole in stucco above entry way tower is not repaired; (4) both garage door weather stripping painted and not cleaned off; (5) garage floor tile trim painted and never cleaned off; (6) trim above window pop-outs have not been painted; (7) stucco mess all over utility boxes and outlets on both sides of home from repair attempt; (8) piant [sic] on garage doors caulking and fading. Not painted Satin per contract; and (9) stucco north and south walls painted in satin and not flat per contract.
A Directive was issued on June 1, 2016, by the Registrar directing Respondent to remedy the following violations by the appropriate means: (1) stucco damage to the north and south walls of residence. Corrective by appropriately licensed contractor; (2) broken tile above entry way tower on southside. Correct by appropriately licensed contractor; (3) hole in stucco above entry way tower is not repaired. Correct by appropriately licensed contractor; (4) both garage door weather stripping painted and not cleaned off. Correct by appropriate means; (5) garage floor tile trim painted and never cleaned off. Correct by appropriate means; (6) trim above window pop-outs have not been painted. Correct by appropriate means; (7) stucco mess all over utility boxes and outlets on both sides of home from repair attempts. Correct by appropriate means; and (8) stucco north and south walls painted in satin and not flat per contract. Correct by appropriate means after stucco repairs are completed. Respondent was provided a date of June 16, 2016, at 5:00 p.m. to remedy and provide written proof of satisfactory compliance.
On June 16, 2016, at 2:13 p.m., Respondent submitted an email correspondence to the Registrar citing various reasons why they were unable to meet the Directive’s date of completion. In that email, Respondent raised concern on the requested repair bids obtained from Complainant as being significantly more stucco work than required.
The Registrar issued a Citation on July 7, 2016, against Respondent for Alleged Violations of Rule 4-9-108 Minimum Construction Standards, thereby A.R.S. § 32-154(A)(3) and A.R.S. § 32-154(A)(22) failure to take appropriate corrective to comply without valid justification. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Respondent’s license.
Respondent submitted a timely written answer to the Citation affirmatively alleging it made multiple attempts to gain access to the project.
The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On July 22, 2016, the Registrar issued a Notice of Hearing, setting the hearing on August 31, 2016, at 10:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint and to Respondent at its address of record. Complainant submitted a request to continue the hearing and for good cause was granted a continuance date of September 13, 2016, at 1:00 p.m.
Pursuant to A.R.S. § 41-1092.06, the Registrar set the matter for a Settlement Conference to be conducted in compliance with A.R.S. § 41-1092.06(B); Ariz. R. Evid. 408. The Settlement Conference was scheduled for August 11, 2016, at 12 noon. No resolution was reached.
HEARING EVIDENCE.
ROC Inspector stated that upon receipt of the email from Respondent dated June 16, 2016, advising of their inability to gain access to the property to complete the work listed on the directive, and noting communications broken on both sides, he referred the matter to Legal.
Complainant testified he was not satisfied with the workmanship of the painting project contracted to be performed by Respondent on the exterior of the residential property. Complainant expressed frustration in relation to the time invested and efforts to resolve the matter. The work was complete on June 30, 2014.
Complainant offered into evidence an email dated October 22, 2014, as first notice to Respondent of dissatisfaction of the complained of workmanship. The referenced email stated “I took these pictures 2 weeks after the painting was done. I didn’t notice these issues until then. I then had a heavy travel schedule and forgot to send them to you for your review.”
Respondent testified they have been in business for nine (9) years and made good faith efforts to satisfy Complainant’s concerns. Respondent did not deny workmanship issues and testified that immediately upon notice they took measures to remedy.
Respondent testified they attempted corrective action and worked to obtain bids from various stucco contractors for homeowner’s consideration and provided a copy of a proposal dated July 20, 2015, obtained from a representative of Stucco by Fernando, Inc. (“Fernando”).
Respondent admitted the proposal to illustrate attempts to work with Complainant and its offer to pay a licensed stucco contractor reasonable repair costs. In this instance, $2,400.00 to “restucco two walls, brown over existing stucco with texture finish to match existing texture.”
Complainant testified he did not have input on any of the bids and that Respondent is not a general contractor and cannot hire subcontractors.
Respondent entered into evidence an email dated July 30, 2015, notifying Complainant that “Fernando will likely want you to sign his proposal at which time we will make the payment for the repairs. I also wanted to give you the option of me cutting you a check for the cost and you can have the repairs completed by someone else as well.”
Witness testified that he was prepared to have him sign to begin the stucco work but Complainant was difficult and uncooperative.
Complainant testified that he was not presented any proposal to sign. He further stated that when Witness showed up to begin the work, he was leaving for the airport, and did not want anyone on the property doing work while he was away.
Respondent submitted communications wherein Complainant stated “You are not choosing the company I use, the ROC does not choose which contractor does the repairs and I am taking the risk of not knowing which company will be able to do the repairs based on how long this drags out. So, If it costs me more to fix the house, then I’ll have to deal with that.” Included in these various communications were two (2) stucco work proposals received by Complainant as: (1) Stucco Renovations of Arizona LLC dated October 14, 2015, for a project price of $9,865.00; and (2) Associated Finishes, Inc. dated November 2, 2015, for a proposed price of $8,793.00 (total credit card).
Respondent testified that they were unsuccessful in their attempts to satisfy the Complainant’s expectations so they contacted the ROC and requested assistance by way of ROC’s Building Confidence Program. In response to its request, on December 15, 2015, an ROC inspector conducted a jobsite visit and noted his opinions as “crack repairs not acceptable per homeowner,” “does not meet industry standards.” Inspector Notes, noted, “It is of this investigator’s opinion that the stucco repairs are not closely matching to existing stucco applied to the house originally. The stucco needs to match closely. A appropriately licensed contractor should do the repairs hired by a general contractor or homeowner. A painter’s license does not allow repair of the amount of stucco that was repaired. Also the painter’s license does not allow for the hiring of a subcontractor to do the repairs.”
Respondent submitted various emails beginning with June 8, 2016, acknowledging receipt of ROC’s directives and requesting a time to schedule to remedy with dates of June 9, 10, 13, 14, and 15. To which, Complainant replied “I’ll have a settlement number for you later today so you can cut a check and mail it to me to meet the deadline.” Respondent replied “the ROC did not order a financial payment as corrective action; we would like to work with you in identifying a contractor who can competently do the work. Once that repair is to your satisfaction and cured, we can paint the East and West wall in flat per the directive.” On June 10, 2016, Complainant replied that the 13th does not work, and that Respondent is not authorized to be on the property without the homeowner or a general contractor that he hired being present. Complainant further stated that “moving forward, the repairs and any work being done will be done on my schedule, not yours.”
In an email sent to Respondent by Complainant on June 13, 2016, he stated, the deadline of the 16th still stands. I am choosing a financial settlement. As I stated in earlier email, I will consider the deadline met if I have a check in my mailbox or in my hand. This has gone on far too long and I am not going to allow your company to waste any more of my time having you involved in getting my home repaired to the condition it was before CertaPro showed up. . . The ROC Directive is clear. A deadline was set so this process could move forward.: Respondent provided two options as follows: (1) pay $11,044 – CertaPro paints, or (2) $12,644.00 – CertaPro walks away.
The evidence at hearing showed that Respondent has reasonably stood prepared to make all remedies that ROC has ordered it to make, but Complainant has not allowed it access to do so or reasonably cooperated to achieve same.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence.
A preponderance of the evidence is the 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.
Statutes should be interpreted to provide a fair and sensible result. Statutes shall be liberally construed to effect their objects and to promote justice.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
A.R.S. § 32-1154(A)(3) and (22) provides that the holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: (3) Violation of any rule adopted by the registrar; and (22) Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The preponderance of the evidence shows Complainant violated A.R.S. § 32-1154(A)(3) minimum construction standards. Several items listed on the Directive are now resolved as it pertains to clean up. However, the stucco damage to north and south walls cannot be repainted in satin until the stucco damage has been repaired, of which Respondent was willing to provide reasonable repair costs as needed in order to repaint to be compliant, but Complainant was seeking significant repairs.
The preponderance of the evidence does not show that Respondent violated A.R.S. § 32-1154(A)(22) by failing to comply with the Directive because Complaint did not adequately and reasonably allow Respondent access to do the required work.
Because Complainant has not permitted Respondent to do any repairs in response to the ROC’s directive, despite Respondent’s willingness to do so, it would be appropriate to dismiss this matter even if Respondent had committed a minimum construction standards violation.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Citation Case No.. 2016-941 be dismissed.
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 is forty days after the date of that certification.
Done this day, September 30, 2016.
/s/ Linda Marie Brown
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
Done this day, September 30, 2016.
/s/ Linda Brown
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors