ALJDEC decisions subject to certification as final

2017A-245-ROC · Registrar of Contractors · 2017-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Linda A. Garza and Juan Garza,

COMPLAINANTS,

v.

George Edward Lindell

DBA: Neighborhood Remodel ,

License No. R-62.304407-R,

RESPONDENT.

No. 2017A-245-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 20, 2017, at 8:30 a.m.

APPEARANCES: Juan Garza appeared on behalf of himself and his wife, Linda A. Garza (collectively “Complainants”); George Edward Lindell DBA: Neighborhood Remodel (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

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FINDINGS OF FACT

Background and Procedure

On or about April 11, 2016, the Arizona Registrar of Contractors (“the Registrar”) issued License No. R-62.304407-R for residential minor home improvements to Respondent.

On or about January 13, 2017, Complainants filed a complaint with the Registrar against Respondent alleging eleven specific items of poor work in Respondent’s performance of its contract to paint and repair a bedroom and a bathroom and to touchup the hallway, stairway, downstairs foyer, and one nook at Complainants’ house at 3256 N. 89th Place, Mesa, Arizona 85207. According to the complaint, the contract amount was $550.00 and Complainants had paid Respondent $570.00.

The Registrar assigned the complaint to its investigator, Assistant Chief of Investigations Mike Crow (“Investigator Crow”), for investigation. On or about January 20, 2017, Investigator Crow sent a letter informing the parties that he would perform a jobsite inspection on February 13, 2017, at 10:00 a.m.

Investigator Crow performed a jobsite inspection on February 13, 2017, which Respondent did not attend. On March 2, 2017, Investigator Crow on behalf of the Registrar issued a directive to Respondent to repair nine of the eleven items of poor work alleged in Complainants’ complaint on or before 5:00 p.m. on March 18, 2017. The March 2, 2017 directive provided in relevant part as follows:

Repair to bathroom wall where the paint blistered and peeled off.

Respondent shall correct by appropriate means.

Paint on bathroom light needs to be removed.

Respondent shall correct by appropriate means.

Bathroom bleed-through needs to be repainted.

Respondent shall correct by appropriate means.

Paint the upper part of bathroom window that was not painted.

Respondent shall correct by appropriate means.

Paint stains on my new bed frame.

Respondent shall correct by appropriate means.

Repair to bedroom where holes were not patched properly.

Respondent shall correct by appropriate means.

Repaint bedroom where there is paint bleed-through.

Respondent shall correct by appropriate means.

Repaint nook where there is paint bleed-through.

Respondent shall correct by appropriate means.

Paint removed from my wood blinds.

Respondent shall correct by appropriate means.

Respondent shall complete paint job behind bedroom blinds by appropriate means.

Respondent performed some repairs. After Complainant Linda Garza informed Investigator Crow that she was not satisfied with Respondent’s repairs, on March 20, 2017, Investigator Crow sent a letter to the parties, informing them that he would perform a second jobsite inspection on March 22, 2017, at 2:30 p.m. to determine if Respondent had complied with the March 2, 2017 directive.

Investigator Crow performed a compliance inspection on March 22, 2017. On March 30, 2017 he issued a compliance inspection report in which he opined that although Respondent had completed repair item nos. 5 and 8 on the March 2, 2017 directive in accordance with the Registrar’s standards, item nos. 1, 2, 3, 4, 6, 7, and 9 were incomplete. Investigator Crow took photographs of Respondent’s workmanship deficiencies.

Investigator Crow referred the complaint to the Registrar’s Legal Department. On April 14, 2017, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend the 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 cause to revoke or suspend his license. Respondent attached to his written answer black and white photographs of his work at Complainants’ house that he stated showed no workmanship deficiencies.

An evidentiary hearing was held on June 20, 2017. Complainant Mr. Garza testified. Respondent testified and presented the testimony of his employee, Matthew Sims. Investigator Crow also testified.

Hearing Evidence

Investigator Crow testified consistently with the March 2, 2017 directive and March 20, 2017 compliance inspection report.

Respondent testified that he thought the initial jobsite inspection was on February 13, 2017, and so missed the jobsite inspection. When he learned of the March 2, 2017 directive, he had only five days to perform corrective work. Respondent testified that he performed corrective work to make the job comply with the Registrar’s standards.

Respondent testified that he gave his photographs that showed no workmanship deficiencies to Investigator Crow, but that Investigator Crow refused to consider the photographs.

Investigator Crow testified that although the Registrar may consider photographs as references, photographs are not evidence of a workmanship deficiency or good workmanship. The Registrar still must send an investigator to personally view alleged deficiencies before any determination can be made about whether the contractor complied with the Registrar’s workmanship standards.

Investigator Crow testified that he has spent over 20 years building houses from the ground up, including performing all aspects of painting. He has personally performed painting and is familiar with practices and workmanship standards in the painting profession.

Respondent testified that the blinds in the bathroom were nailed to the wall. Mr. Sims testified that although Respondent still painted behind the blinds, it was impossible not to get paint on the blinds.

Investigator Crow testified that for a contractor to perform painting in a professional and workmanlike manner, the contractor must prep the job, including cleaning surfaces and masking areas to be protected from paint. The contractor must paint all visible surfaces, even if blinds must be taken down or masked.

Respondent testified that he does not request payment until a customer is satisfied and that Complainants paid Respondent in full for the job. Respondent testified that he could paint the job ten times and that Mrs. Garza still would be unsatisfied.

Mr. Garza testified that Mrs. Garza paid Respondent at the end of the day. On the next day, in natural daylight, she noticed obvious workmanship deficiencies.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website. No discipline has ever been taken against the license. Complainants’ complaint is apparently the only complaint pending against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses or factors in mitigation of the penalty 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.”

Especially in this age of photo-shopping and staging a scene through manipulation of lighting and other factors, photographs may not accurately depict what would be visible to a person who is qualified as an independent and impartial expert during an in-person inspection. Based on Investigator Crow’s experience in construction and employment as the Registrar’s Assistant Director of Investigations, he is qualified as an independent and impartial construction expert, especially on the issue of whether work complies with the Registrar’s workmanship standards. Respondent did not establish that Investigator Crow was unqualified or biased.

Investigator Crow credibly testified that Respondent’s work still does not comply with the Registrar’s workmanship standards in the seven respects noted on the March 30, 2017 compliance inspection report. Complainants therefore established that Respondent’s workmanship did not comply with the Registrar’s standards, thereby providing 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.

Based on the seven incomplete repairs noted on Investigator Crow’s March 30, 2017 compliance inspection report and his testimony at the hearing, Complainants established that Respondent failed to fully comply with the Registrar’s March 2, 2017 directive, thereby furnishing cause to revoke or suspend its contractor’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 final order in this matter, License No. R-62.304407-R of Respondent George Edward Lindell DBA: Neighborhood Remodel shall be suspended for a period of three calendar days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 final order, the Registrar shall 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 five days from the date of that certification.

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Done this day, June 26, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors