ALJDEC decisions subject to certification as final

2018A-06104-ROC · Registrar of Contractors · 2019-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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). 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. 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. 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 $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.

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. 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). 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 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. 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.” A hearing was held on April 25, 2019. Complainant appeared through Aaron Langley, presented the testimony of Larry Lambert, and submitted six exhibits. 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. 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. 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. 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. 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 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 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 40 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 ----------------------- [1] 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.” [2] 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.” [3] 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