FINACT2018A-06104-CHC-ROC.pdf

2018A-06104-ROC · Registrar of Contractors · 2019-06-04

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Pine Country Builders LLC, Case No. 2018-06104 COMPLAINANT, Docket No. 2018A-06104-CHC-ROC v. James Benton Nelson Sr., FINAL ADMINISTRATIVE DECISION DBA: Wapiti Painting Company, AND ORDER License No. ROC 135475, 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 13, 2019.

IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00

payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be

hand-delivered to the Registrar’s physical address or mailed to:

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE On page 1, line 8 replace “April 24, 2019” with “April 25, 2019”.

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

Copy mailed via USPS First Class mail June 3, 2019 to: Respondent James Benton Nelson Sr DBA: Wapiti Painting Company 210 S Tonto St Payson, AZ 85541 Complainant Pine Country Builders LLC E Pine Canyon Dr Payson, AZ 85541

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 Tammy L. Eigenheer, Administrative Law Judge

Case No. 2018-06104 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 5.17.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pine Country Builders LLC, No. 2018A-06104-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE James Benton Nelson Sr., DECISION DBA: Wapiti Painting Company, ROC License: ROC 135475, RESPONDENT HEARING: April 24, 2019 APPEARANCES: Aaron Langley, Supervisor, appeared on behalf of Complainant Pine Country Builders LLC. Respondent James Benton Nelson Sr., doing business as Wapiti Painting Company did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. James Benton Nelson Sr., doing business as Wapiti Painting Company (Respondent) is the holder of License No. 135475 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about August 2, 2018, Pine Country Builders LLC (Complainant) entered into an agreement with Respondent to paint a project for Larry Lambert. The contract was for a total cost of $11,250.00, which was paid in full. 3. On or about December 26, 2018, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project. 4. The Registrar assigned the complaint to Investigator Steve Philpott. After a jobsite inspection, Investigator Philpott issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32- 1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.17.2019 ROC LEGAL

$500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on February 5, 2019. You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 1: Abandoned work, Investigator’s Observation: The project remains unfinished. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Complaint Item 2: Never painted baseboard or door trim. Investigator’s Observation: The baseboard remains unfinished. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Complaint Item 3: Never did touch up on painted drywall Investigator’s Observation: The touch up work on the drywall remains unfinished. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Complaint Item 4: Drywall painted poorly Investigator’s Observation: The ceiling areas throughout the home appear to have inadequate coverage. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. 5. Following the issuance of the written directive, no corrective work was completed. After the deadline in the directive expired, Investigator Philpott was notified no corrective work had been performed. 6. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). RECEIVED 5.17.2019 ROC LEGAL

7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. The Registrar issued a Notice of Hearing, setting a hearing on at 1:00

p.m. on April 25, 2019. The Registrar mailed a copy of the Notice of Hearing to

Respondent at its address of record.

9. The Notice of Hearing informed the parties that “[f]ailure to attend the

scheduled hearing is likely to result in an adverse ruling against you.”

10. A hearing was held on April 25, 2019. Complainant appeared through

Aaron Langley, presented the testimony of Larry Lambert, and submitted six exhibits.

11. Respondent did not request to appear telephonically and did not request

that the hearing be continued. Although the start of the hearing was delayed 25

minutes, Respondent did not appear through an authorized member, employee, or

attorney. Consequently, Respondent did not present any evidence to defend its

license.

12. Investigator Philpott testified as to the Registrar’s involvement in this

matter including his jobsite inspection and the written directive. Investigator Philpott

stated he did not perform a compliance or prehearing inspection due to Respondent’s failure to attempt any corrective actions. 13. Aaron Langley, Supervisor for Complainant, testified that following the directive, a crew arrived on the job one day to see what needed to be done to correct the issues, but they went back out to their car and packed up. Mr. Langley indicated that no one else attempted to perform any corrective work prior to the deadline in the directive expiring. Mr. Langley stated that Complainant had to hire another contractor to correct the poor and incomplete work performed by Respondent on the project. Mr. Langley provided documentation showing Complainant paid the subsequent contractor $842.46 for supplies and $4150.00 for labor to complete the job. 14. Larry Lambert, the homeowner, testified that he was living in the home during the remodeling project. Mr. Lambert stated that no one contacted him on behalf of Respondent to arrange a time for them to complete the corrective work. RECEIVED 5.17.2019 ROC LEGAL

15. Administrative notice is taken of Respondent’s prior License record on May 16, 2019. Such prior License record reflects that Respondent’s License No. 135475 was first issued on May 24, 1998, and is current. Such prior License record

also reflects that there were no other open complaints or resolved/settled complaints

against Respondent’s license.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101

et seq.

2. Complainant bears the burden of proof to establish Respondent’s

statutory violations by a preponderance of the evidence. See A.R.S. § 41-

1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v.

Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the

evidence is such proof as convinces the trier of fact that the contention is more

probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 3. The evidence established that Respondent did not complete the project per the contract. Therefore, Complainant established that Respondent abandoned the contract without legal excuse in violation of A.R.S. § 32-1154(A)(1).1 4. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.2 5. The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant

A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” 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.” RECEIVED 5.17.2019 ROC LEGAL

established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).3 6. A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this

article, an administrative law judge may recommend that a licensee provide restitution

to any person who is injured or whose property is damaged by an action of the

licensee.”

7. The evidence presented established Complainant’s cost to correct and

complete the painting work that was included in the written directive was $4992.46.

Thus, Complainant’s total damages were $4992.46.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the

Order, the Registrar shall suspend Respondent’s License No. 135475 for a period of

five days.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $4992.46 as restitution pursuant to A.R.S. § 32-1156.01. It is further recommended that if Respondent fails to pay the entire amount of the restitution on or before thirty days following the effective date of the Registrar’s final 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding restitution. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). 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 final 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 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.” RECEIVED 5.17.2019 ROC LEGAL

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

days from the date of that certification.

Done this day, May 16, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors