ALJDEC decisions subject to certification as final
2017A-4390-CHC-ROC · Registrar of Contractors · 2018-09-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Darrell Allan Tramel,
COMPLAINANT,
v.
M and M Painting LLC,
License No: 224588
RESPONDENT.
No. 2017A-4390-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 21, 2018, 8:30 A.M.
APPEARANCES: Complainant Darrell Tramel appeared on his own behalf; Jason Clark, Esq., appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. M and M Painting, LLC, (Respondent), is the holder of License Number 224588 issued by the Registrar of Contractors (Registrar).
2. On or about August 25, 2017, Darrell Allan Tramel (Complainant) filed a Complaint against Respondent with the Registrar for poor work in connection with exterior painting performed by Respondent at a residence in Prescott, Arizona.
3. After an inspection of the job site on September 28, 2017, the Registrar issued a Directive dated October 18, 2017, requiring Respondent to remedy various alleged violations by November 6, 2017, as follows:
Item - Paint has blistered and peeled. Paint manufacturer lab results show that poor application caused the failure.
The respondent accepted the surface when he applied is product.
The respondent is to correct the condition in an appropriate manner.
4. After an October 15, 2017, compliance inspection, the Registrar issued a Citation to Respondent on December 29, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for March 12, 2018, continued it to April 13, 2018, to May 30, 2018, to June 29, 2018, and then to August 21, 2018. At the hearing, Complainant Darrell Tramel testified on his own behalf and presented the testimony of Josh Evans; Respondent presented the testimony of Martin Hernandez, Owner. The Registrar Investigator (Investigator) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 – 11 and Respondent’s exhibit numbers 1 – 59.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he conducted a pre-hearing inspection on August 17, 2018, and observed that the original Directive items had been resolved and that Respondent had knocked down the edges of the patched areas, but that there were new bubbles in the painted exterior that had arisen. He stated that he believed there were some new bubbles in the general areas Respondent had corrected, but that they were not in the exact same areas. He further testified that he did not believe that the entire exterior walls needed to be redone and that Respondent was only responsible for those affected areas as they occurred.
7. Complainant Darrell Tramel presented a bid from Listol Painting and Environmental, (Complainant’s Exhibit 8), and Manning’s Painting Company, (Complainant’s Exhibit 9), both of which indicated that the exterior surface should have been primed by Respondent or that Respondent had not used the correct primer. Both bids indicated that the exterior walls would need to be completely stripped, sanded, and primed. He testified that he had wanted to change the color of the residence, and that there had been no bubbling on the pre-existing paint that Respondent covered.
8. Josh Evans from Sherman Williams, a witness designated by both parties, testified that Sherman Williams performed a test on a paint film sample and determined that blistering resulting from lifting of the existing stain due to “minor wood delamination and moisture in the wood.” (Respondent’s Exhibit 4). He stated that the paint used by Respondent, which had been purchased and provided by Complainant, was Sherman Williams “Super paint” which he stated was paint and primer all in one. He further testified that to ultimately alleviate the problem, the source of the moisture in the wood would need to be located.
9. Martin Hernandez, owner of Respondent, testified that Complainant chose the paint to be applied over the then-existing paint and that the contract for $2,000.00 was for labor only in spray painting the exterior. He stated that Respondent first power washed the exterior and then spray painted and that the specifications for the paint allowed for painting over the existing paint without a primer.
10. Mr. Hernandez further testified that he had performed corrective work three times since the filing of the Complaint in December 2017, March 2018, and May 2018. He stated Respondent each time corrected the bubbles, which he described as dime-sized, by scraping and sanding down to the wood and then priming and painting. He stated that bubbles later arose in new areas and not the areas that had been corrected. He further stated that Complainant from the outset of the bubbling issue had wanted the entire exterior stripped down to the wood (including removal of the pre-existing paint over which Respondent painted) and then repainted. (Respondent’s Exhibit 1).
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994); see also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,
3. Violation of any rule adopted by the registrar.
...
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....
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. Complainant has failed to meet its burden to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). There does not appear to be a dispute that Respondent corrected the original items in the Directive. However, since that time, new bubbles have arisen and although Respondent again took care of those bubbles, new bubbles have yet again arisen.
7. Complainant has not presented sufficient evidence to show that Respondent’s work was the cause of the bubbling condition of the painting. There was no evidence presented that the cause of the bubbling could be attributed to the paint selected by Complainant or Respondent’s application of the paint. Indeed, the Sherman Williams report did not indicate that the bubbling resulted from poor application as Complainant indicated in his Complaint, but rather from delamination of and moisture in the wood. (Respondent’s Exhibit 4).
8. The Directive stated that Respondent accepted the surface when he applied the product. It is true as a general principle that a contractor who performs work on top of a surface prepared by another accepts the surface. The basis for such is that a contractor should have inspected the surface before performing the work to discover any potential defects that might affect the work. (Respondent’s Exhibit 56). However, there was no evidence presented to show that an inspection by Respondent before the work started could have uncovered the possible condition of bubbling or the existence of moisture in the wood. Rather, the testimony reflected that there had been no bubbling of the pre-existing painted surface to alert Respondent of a possible defect in the wood.
Moreover, there was no evidence presented that Respondent may have caused the moisture problem during power washing.
9. Complainant presented two bids from contractors in which they indicated that Respondent should have primed the surface first or that Respondent used the wrong primer. However, the evidence suggested that it was Complainant that selected the self-priming paint and the only evidence presented regarding the specifications for that paint was that it could be applied over pre-existing paint without separate priming. Further, there was no evidence presented that these contractors were aware of the moisture problem or the actual cause of the bubbling or that their proposed work would in fact correct the original problem.
10. Complainant has further failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Indeed, Respondent corrected the original Directive items and other items that had arisen since the Directive.
11. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that this case shall be dismissed.
. In the event of certification of this 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 the certification.
Done this day, September 10, 2018.
/s/ Roger Geddes________
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors