ALJDEC decisions subject to certification as final

2018A-05276-ROC · Registrar of Contractors · 2019-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 13, 2019, at 9:00 a.m.; March 18, 2019, at 1:30 p.m. APPEARANCES: Frank Joseph Gunning (“Complainant”) appeared on both hearing dates on his own behalf; Affordable Fixers LLC (“Respondent”) appeared through Dean Richard Brownfield, a member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website,[1] on June 15, 2018, the Registrar issued License Nos. ROC 320511, for Specialty Dual CR- Electrical Contracting and ROC 320512, for Specialty Residential R-62 Minor Home Improvements to Respondent. Dean Richard Brownfield is a member listed on both licenses. One Charles Lee Brandon Humble is the qualifying party/ member on both licenses. 2. On November 5, 2018, Complainant filed a complaint with the Registrar, alleging that Respondent had committed poor work in performing a contract to perform certain work, primarily painting, at a rental unit at 127 North 6th St., Sierra Vista, Arizona 85635. 3. According to the complaint, the date of the contract was April 17, 2017, and Complainant paid Respondent the full $4,500.00 contract price for the work. 4. Complainant did not attach a contract to his complaint. He attached a check in the amount of $2,500.00 dated April 12, 2017, made payable to Mr. Brownfield and a check in the amount of $2,091.19 dated April 28, 2017, made payable to Mr. Brownfield.[2] The handwritten notation on the register was “popcorn removal, paint.”[3] 5. The complaint was assigned to the Registrar’s Investigator Mike Springer for investigation. On December 5, 2018, Investigator Springer performed a jobsite inspection. 6. On December 5, 2018, the Registrar issued a Directive that required Respondent to perform certain work on or before December 21, 2018, in relevant part as follows: Complaint Item 1: From Scope of work: Knock down texture inconsistent applications. Complaint Item 2: Stress cracks and texture on interior not repaired. Complaint Item 3: Walls not painted. Complaint Item 4: Overspray from ceiling on doors, walls, skylights. Complaint Item 5: Caulking not done on interior corners or baseboards. Complaint Item 6: Texture and paint on flooring, carpet interior. Complaint Item 7: Several interior doors removed and replaced with unprimed/painted ones. Complaint Item 8: Exterior door removed, entire casing replaced, no paint or proper repairs made.

7. After Complainant told Investigator Springer that Respondent had failed to perform repairs to the items on the directive to Complainant’s satisfaction, Investigator Springer referred the matter to the Registrar’s Legal Department. On December 27, 2018, the Registrar issued a Citation against Respondent’s contractor’s licenses, charging cause to suspend or revoke the licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and 32-1154(A)(22). 8. Mr. Brownfield on behalf of Respondent filed a timely written answer to the Citation, denying any statutory violation because “we have adhered to the corrective action as needed and do not find all items relevant to original contract.” 9. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 10. A telephonic hearing from the Registrar’s Tucson office was held March 13, 2019. 11. Complainant testified that Respondent had left an absolute mess and that he had lost income from being unable to rent the property. He has never seen such poor work in all his years of managing rental properties. He had obtained an estimate from another licensed contractor in the amount of $17,000.00 to repair the work. 12. Investigator Springer testified consistently with the December 5, 2018 directive. Investigator Springer testified that he performed a prehearing jobsite inspection on February 8, 2019. Investigator Springer testified that, although some repairs had been attempted, none of the items had been corrected to comply with the Registrar’s workmanship standards and that some of the attempted repairs caused collateral damage to the flooring and carpet. 13. Respondent did not appear at the Registrar’s Tucson office for the March 13, 2019 hearing. After the hearing, the Administrative Law Judge (“ALJ”) checked her email and found a telephone message from Mr. Brownfield on behalf of Respondent, stating that he was having car trouble and leaving a contact number. The ALJ set a further hearing on March 18, 2019 so that Respondent could present its defense. 14. At the March 18, 2019 hearing, Mr. Brownfield testified that the only work that Respondent performed was the removal of the popcorn ceilings and that Complainant’s wife had verbally approved Respondent’s work in April 2017. 15. Both Complainant and Mr. Brownfield testified that, after Respondent performed the work on or about April 17, 2017, Mr. Brownfield and his family rented the property from Complainant. Both Complainant and Mr. Brownfield agreed that Complainant had evicted Mr. Brownfield and his family before Complainant filed the November 5, 2018 complaint with the Registrar. 16. Mr. Brownfield testified that the construction problems that Complainant complained about were the result of wear and tear by Mr. Brownfield’s family while they rented the property. Mr. Brownfield argued that the purported construction defects were actually a landlord-tenant issue. 17. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website on this date. Respondent’s License No. ROC 320512 is current and in good standing, with no history of discipline. This complaint appears to be the only one pending against the license. CONCLUSIONS OF LAW 1. Matters involving licensed contractors’ performance of contracting work lies within the Registrar’s jurisdiction.[4] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s licenses by a preponderance of the evidence.[5] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[6] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] 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.”[8] 4. Complainant contracted with Mr. Brownfield to remove the popcorn ceiling and do some unspecified painting at the property in April 2017, some fourteen months before Respondent became licensed in June 2018. After Complainant rented the unit to Mr. Brownfield and his family in April 2017 and, at some point thereafter, evicted them, he filed a complaint with the Registrar in November 2018, some eighteen months after the work had been performed. Because it does not appear that Respondent is responsible for the work or that all of Complainant’s complaints resulted from poor work, as opposed to tenant damage, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3),[9] namely A.A.C. R4-9-108.[10] 5. Nonetheless, after Respondent became licensed, Complainant filed the complaint with the Registrar, and the Registrar issued the directive, Mr. Brownfield performed repair work. Complainant established that Mr. Brownfield did not perform the repair work to comply with the Registrar’s workmanship standards. Complainant therefore established cause to suspend or revoke Respondent’s license under A.R.S. § 32- 1154(A)(22).[11] 6. The facts that Respondent was not required to undertake corrective work, since it was not responsible for the original work that was the subject of the complaint and at least some of the problems that Complainant complained about were not the result of Mr. Brownfield’s poor work are considered as factors in mitigation of the penalty. 7. Because none of the work or repairs was within the scope of Respondent’s License No. ROC 320511 for Specialty Dual CR-11 Electrical Contracting, that license should not be disciplined. RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Respondent Affordable Fixers LLC’s License No. ROC 320512 shall be suspended for a period of one business day. It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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. Done this day, April 2, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.A.C. R4-9-117 (“In any disciplinary proceeding conducted by the registrar, the licensee’s entire license file including the record of prior citations and decisions may be considered by the registrar in making a decision and order in the case.”). [2] See the Registrar’s electronic file at pdf pages 29, 31. [3] See id. at pdf page 32. [4] See A.R.S. § 32-1154(A). [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] See A.A.C. R2-19-119(B)(2). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [8] Black’s Law Dictionary at page 1220 (8th ed. 1999). [9] A.R.S. § 32-1154(A)(3) includes among the grounds to suspend or revoke a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

[10] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [11] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826