ALJDEC decisions subject to certification as final

2017A-2006-CHC-ROC · Registrar of Contractors · 2017-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jacque Ashley Gilmore,

COMPLAINANT,

v.

McNeil Painting LLC ,

License No: 296871

RESPONDENT.

No. 2017A-2006-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 8, 2017

APPEARANCES: Complainant Jacque Ashley Gilmore appeared on her own behalf. Paul McNeil, Respondent’s Owner and Qualifying Party, appeared on behalf of Respondent McNeil Painting LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

McNeil Painting LLC (Respondent) is the holder of License No. 296871 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 7, 2017, Jacque Ashley Gilmore (Complainant) entered into a contract with Respondent for, among other things, the painting of the interior of her home.

On or about April 14, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 5-26-2017.

You are hereby directed to remedy the following violations by the appropriate means:

We moved in on 12-31-2016 and immediately began to notice that our new paint was chipping and peeling quite easy.

Correct locations throughout the home were the paint appears soft and not adhered to the wall. Properly prepare and refinish effected [sic] areas.

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

Following the issuance of the written directive, Respondent emailed Complainant on May 24, 2017, indicating that, because Respondent’s license was no longer active, it was not allowed to perform the corrective work, but offered a cash settlement. After the deadline in the directive expired, Investigator Grimm was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Complainant testified that areas of paint inside the home could be scratched off with a fingernail. Complainant indicated that the issues seemed to be worse in areas where the tile floor had been removed and speculated dust from the removal may have impacted the adhesion of the paint. Complainant’s father testified that even hanging pictures and curtain rods scratched the paint.

Paul McNeil, Respondent’s Owner and Qualifying Party, testified that he dusted all the walls throughout the home after removing the tile. Mr. McNeil also stated that Complainant opted for zero VOC paint, which is not as adhesive as VOC paint. Mr. McNeil compared to them Elmer’s glue and superglue, respectively. Mr. McNeil testified that he had a representative from Dunn Edwards visit the home and take samples, which did not show any silica or sand in the paint. Mr. McNeil speculated that he had received a bad product from Dunn Edwards. Mr. McNeil did not deny that there were issues with the paint peeling or that he did not perform any corrective work.

Administrative notice is taken of Respondent’s prior License record on August 27, 2017. Such prior License record reflects that Respondent’s License No. 296871 was first issued on April 10, 2015, and was voluntarily cancelled on March 13, 2017. Such prior License record also reflects no prior complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s voluntarily cancelled license does not deprive Complainant of her right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 296871 for a period of 10 days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 40 days from the date of that certification.

Done this day, August 27, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors