FINACT2018A-06096-CHC-ROC.pdf

2018A-06096-ROC · Registrar of Contractors · 2019-06-04

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Mark F Longhi, Case No. 2018-06096 COMPLAINANT, Docket No. 2018A-06096-CHC-ROC v. Douglas Gene Larson, FINAL ADMINISTRATIVE DECISION License No. ROC 283240, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on July 16, 2019.

Dated June 3, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail June 3, 2019 to: Respondent Douglas Gene Larson 3050 N Tomas Rd Tucson, AZ 85745 Complainant Mark F Longhi 2614 N Camino Principal Tucson, AZ 85715 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Thomas Shedden, Administrative Law Judge

Case No. 2018-06096 / DE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 5.20.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark F Longhi, No. 2018A-06096-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Douglas Gene Larson, DECISION License No. ROC 283240, RESPONDENT

HEARING: April 29, 2019 APPEARANCES: Mark F. Longhi on his own behalf; Douglas Gene Larson on his own behalf ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On March 5, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on April 29, 2019 at the Office of Administrative Hearing. 2. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and complaint, but does not specify when these were issued or filed. 3. Respondent Douglas Gene Larson holds license No. 283240 issued by ROC. 4. Complainant Mark F. Longhi hired Respondent to perform painting work at a house in Tucson that Mr. Longhi owns. Other trades were also working at the house, where Mr. Longhi was acting as his own general contractor. Mr. Longhi and Mr. Larson did not have a written contract. 5. Mr. Longhi appeared and testified, he presented the testimony of Courtney Benton who has over thirty years’ experience in construction and interior design work, and he called ROC Investigator Mike Springer to testify.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.20.2019 ROC LEGAL

6. Mr. Larson appeared and testified, and he also presented the testimony of his wife Sandra Larson and Christina Chopa, who both had knowledge of the work at issue.

7. The administrative record includes copies of a complaint filed against Mr.

Larson by Mr. Longhi that was marked received by ROC on December 26, 2018. In his

complaint Mr. Longhi alleged that the exterior wood was not properly painted, but he

did not allege that the stucco was improperly painted. He also alleged that there were

areas that had not been properly prepared or caulked before painting.

8. Mr. Springer conducted a jobsite inspection on January 14, 2019.

9. On January 14, 2019, ROC issued to Respondent a DIRECTIVE that

required Respondent to correct by appropriate means:

1. Exterior looks like it had primer on wood – never caulked underneath refused to finish Caulk and prep exterior and interior and repaint.

10. The DIRECTIVE shows that ROC had determined that any other

workmanship violations alleged in Mr. Longhi’s complaint were unsubstantiated. 11. The DIRECTIVE required Respondent to provide ROC with written proof that he had made the required corrections by no later than 5:00 p.m. January 30, 2019. 12. Respondent did not complete the work ROC ordered him to complete by the deadline imposed by ROC. 13. The administrative record includes a CITATION issued to Respondent by ROC on February 27, 2019. Through that CITATION ROC alleges that Respondent may have violated ARIZ. REV. STAT. sections 32-1154(A)(3) and (A)(22). 14. Mr. Larson filed an answer to the CITATION in which he provided that much of what Mr. Longhi complained of was not within his scope of work as a painter and that the DIRECTIVE issued by ROC was vague and open-ended. In his answer, Mr. Larson drew attention to the fact that the white paint that Mr. Longhi selected for the exterior provided “‘no’ hide,” meaning that it does not cover well, and that Mr. Longhi was responsible to have the stucco patched to his satisfaction before Mr. Larson would paint the exterior. RECEIVED 5.20.2019 ROC LEGAL

15. Evidence was presented as to caulking in two areas: (1) a gap by a beam in a bedroom ceiling and (2) outside at the eaves. 16. Mr. Larson presented credible evidence showing that the gap in the

bedroom ceiling was too large to caulk (because the caulk would fall out) and to the

effect that repairing the gap was not within his scope of work (or that a painter

generally).

17. Although, Mr. Springer testified that the gap required caulking, he

acknowledged that he did not know how wide the gap was, and he did not address

Respondent’s evidence showing that the gap was too large to caulk.

18. Mr. Longhi presented no evidence to show that Mr. Larson was in error

and that the gap in the ceiling could actually be repaired using caulking.

19. Regarding the eaves, Mr. Larson presented credible evidence to the effect

that caulking eaves is not within a painter’s normal scope of work and that it was not

part of his contract with Mr. Longhi. There was no substantial evidence adduced

showing that Respondent was responsible for caulking the eaves.

20. Mr. Larson testified that Mr. Longhi had required Respondent to paint the

stucco before it had cured for a full thirty days. But Mr. Longhi, who was acting as the general contractor, denied this and testified that the stucco had cured for thirty days before Mr. Larson painted it. 21. Mr. Longhi chose to have the exterior of the house painted with white paint with a high reflective value, which as pertinent to this matter means it does not appear to cover well. 22. Ms. Benton effectively acknowledged that the white paint chosen by Mr. Longhi, which she referred to as “white/white,” does not cover well, and she testified that any flaws would tend to be more visible. She would expect a painter to let her know if using such a white paint would present any issues. There was no evidence adduced as to whether Messrs. Longhi and Larson had discussed how well the paint chosen by Mr. Longhi would cover.

RECEIVED 5.20.2019 ROC LEGAL

23. At the hearing, Mr. Springer testified as to his opinion that the paint was thin and that a second coat should be applied to the stucco, but Mr. Longhi’s complaint did not identify the painting of the stucco as being deficient.

24. Mr. Springer was of the opinion that there was bare stucco near the

windows, but he did not quantify the number of windows or the total area at issue. It

appears that these areas may require touch-up work. Mr. Larson has expressed a

willingness to do any required touch-up work at the house.

25. There was no substantial evidence showing that there were any

deficiencies with the interior painting.

26. Regarding the parties’ contract, Mr. Larson acknowledged that it was oral,

not written. Mr. Larson had entered into evidence what purports to be a lien-release

(signed by Ms. Larson) that shows a scope of work, but Mr. Larson testified that the

scope of work was written in after Ms. Larson signed and was not accurate.1 Mr. Longhi

presented no evidence to rebut or counter Mr. Larson’s testimony on this point.

27. Ms. Larson testified to the effect that on February 5, 2019, the parties met

to discuss their differences but it devolved into a shouting match because Mr. Longhi

would not allow Respondent to explain his position regarding the caulking. 28. On February 7th, Mr. Larson and Ms. Larson met Mr. Longhi at his house to see if they could resolve his issues and to do some touch-up work. Mr. Longhi wanted the bedroom ceiling to be re-caulked and repainted, and he wanted the eaves to be caulked and painted. This was not agreeable to Mr. Larson because he did not consider it to be within his scope of work. 29. On February 7th, Mr. Larson agreed to come back at a later date to complete additional touch-up work, but the next day Mr. Longhi texted Mr. Larson told him not to do so, as he preferred to have the issue addressed at a hearing. 30. Mr. Larson and Ms. Larson each testified to the effect that Respondent was required to work under poor conditions, including working when other trades were present. CONCLUSIONS OF LAW RECEIVED 5.20.2019 ROC LEGAL

1. 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. ARIZ. ADMIN. CODE § R2-19-119.

2. “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).

3. “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).

4. 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). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). 7. 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). 8. The Administrative Law Judge may consider ROC’s administrative record. See ARIZ. ADMIN. CODE § R4-9-118. 9. ARIZ. REV. STAT. section 32-1154(A) provides that

1 It appears that Mr. Longhi may have included this document with his complaint. RECEIVED 5.20.2019 ROC LEGAL

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: ***** 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. 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.

10. ARIZ. ADMIN. CODE section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 11. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22). 12. It has not been shown by a preponderance of the evidence that Mr. Larson committed any of the violations alleged in Mr. Longhi’s complaint. 13. The preponderance of the evidence is not sufficient to show that Respondent was contractually or otherwise obligated to caulk the eaves of the house or that Respondent was contractually or otherwise obligated to caulk or repair the gap by the interior beam. The preponderance of the evidence is not sufficient to show that Respondent’s failure to perform this work was a violation of any workmanship standard. 14. The preponderance of the evidence is not sufficient to show that Respondent violated any workmanship standard in the interior painting. 15. Regarding the exterior, the evidence shows that Mr. Longhi, who was acting as his own general contractor, chose a white paint that does not cover well. Although Mr. Springer was of the opinion that the stucco required a second coat of RECEIVED 5.20.2019 ROC LEGAL

paint, Mr. Longhi did not allege in his complaint that the stucco was improperly painted, and there was no evidence to show that Mr. Larson was contractually obligated to provide an additional coat. The evidence presented does not show that Mr. Larson’s

painting of the wood portions of the exterior violated any workmanship standard.

Consequently, there is not a sufficient basis on which to legally conclude that Mr.

Larson committed any violation of statute or rule as related to the exterior painting.

16. The evidence supports a finding that it might be appropriate for Mr. Larson

to perform some touch-up work, which he stood ready to complete prior to the hearing,

but he was denied access to do so.

17. Although Mr. Larson did not comply with ROC’s DIRECTIVE within the time

ordered, his failure to do so was justified and not a violation of subsection (A)(22). ROC

was ordering Mr. Larson to perform caulking work that he was not responsible to

perform and to repaint the interior when there was no evidence showing that the interior

required any additional painting.

18. It has not been shown by a preponderance of the evidence that

Respondent violated ARIZ. REV. STAT. section 32-1154(A)(22).

19. Because it has not been proven by a preponderance of the evidence that Mr. Larson committed any of the violations alleged in the CITATION and complaint, this matter should be dismissed. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final ORDER in this matter case number 2018-06096 is dismissed. 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 is forty days after the date of that certification.

Done this day, May 20, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge RECEIVED 5.20.2019 ROC LEGAL

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors