ALJDEC decisions subject to certification as final
2017A-5828-CHC-ROC · Registrar of Contractors · 2018-05-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Don Helper,
COMPLAINANT,
v.
John and Diane's Painting, Inc.,
License No: 269374
RESPONDENT.
No. 2017A-5828-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 27, 2018
APPEARANCES: Complainant Don Helper appeared on behalf of himself.
John Hendrix appeared on behalf of Respondent John and Diane's Painting, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
On March 14, 2018, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 27, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
Respondent John and Diane's Painting, Inc. (“JDP”), holds license number 269374 issued by the Registrar. JDP’s qualifying party is John Hendrix.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that JDP may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(3)(12) and (A)(22). The Citation shows that if the Administrative Law Judge finds that either subsection has been violated, the Registrar may suspend or revoke JDP’s license.
On or about August 26, 2017, Mr. Helper and JDP entered into an agreement to stain Mr. Helper’s cabin. The agreement did not advise Mr. Helper of his right to file a Complaint with the Registrar against JDP for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B), and did not provide the Registrar’s telephone number or website address.
On or about October 2, 2017, JDP began work on the cabin.
On or about October 7, 2017, JDP stopped working on the cabin.
On November 20, 2017, the Registrar received a complaint from Mr. Helper alleging poor workmanship on the part of JDP.
On January 8, 2018, in response to Mr. Helper’s complaint, the Registrar’s Investigator Chris Allison ( “Mr. Allison”) conducted a job-site inspection.
Mr. Allison concluded that sections of the railing were not prepped properly because they appeared to have a peeling stain.
On January 11, 2018, Mr. Allison sent Respondent a Directive from the Registrar. The Directive provided, in relevant part, as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:
There are drips and runs in the stain on the log siding. Correct by appropriate means.
Fascia has areas where stain was not applied evenly. Correct by appropriate means.
Deck railing has peeling stain. Correct by appropriate means.
Concrete has stain drips on it. Correct by appropriate means.
Metal window frames have stain on them. Correct by appropriate means.
Garage man door has stain on it. Correct by appropriate means.
The Directive stated that the above work had to be completed by 5:00
p.m. on January 30, 2018.
On February 21, 2018, Mr. Allison performed a compliance inspection at
Complainant’s property. Mr. Allison found that Respondent failed to repair Complaint Items 1, 2, 3, 5 and 6 to minimum workmanship standards.
13. JDP filed a timely response to the Registrar’s Citation.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. A hearing was held on April 27, 2018. Mr. Helper testified on his own behalf and presented the testimony of Sally Marchalonis. John Hendrix testified on behalf of JDP.
16. Mr. Helper and Ms. Marchalonis both testified that JDP performed poor work on the cabin.
17. Mr. Hendrix has 38 years of painting experience. Mr. Hendrix testified that the bid in this matter was not for restoration work and it was frustrating working with Mr. Helper. Mr. Helper also expressed that it is unrealistic for a paint contractor to remove all prior paint before beginning a new job.
18. Administrative notice is taken of the Registrar’s public website. According
to the information regarding JDP’s license record available on the website on May 17, 2018, there are two open complaints against JDP’s license. Such prior license record also shows that two complaints were closed against JDP that were resolved or settled by the contractor or withdrawn by the complainant after issuance of a corrective work order or formal citation.
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.A.C. section R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
Ariz. Rev. Stat. section 32-1154(A) 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:
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3. Violation of any rule adopted by the registrar.
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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. (Underscore added.)
A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The undisputed evidence established that JDP did not provide Mr. Helper
with a contract that included its business address or a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A).
The preponderance of the evidence shows that Respondent did not
perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).
12. The preponderance of the evidence shows that Respondent failed to correct Complaint Items 1, 2, 3, 5 and 6 by appropriate means, in violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 269374 of Respondent John and Diane’s Painting, Inc. shall be suspended for a period of one calendar day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty.
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 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 Ariz. Rev. Stat. section 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, May 4, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors