ALJDEC decisions subject to certification as final

2018A-3678-ROC · Registrar of Contractors · 2019-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 20, 2019 APPEARANCES: Complainant Connie Jean Ball appeared on behalf of herself. Respondent Erik Samuel Fidman appeared on behalf of himself. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On January 3, 2019, the Registrar of Contractors, (“Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on February 20, 2019, by the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Erik Samuel Fidman, DBA: Sun City Painting holds license number 305648 issued by the Registrar. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 4. Through the Citation, the Registrar alleges that Mr. Fidman may have violated Ariz. Rev. Stat. section 32-1154(A)(3) and (22). The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Mr. Fidman’s license. 5. On or about May 19, 2018, Complainant Connie Jean Ball’s front door was replaced with a new door. 6. On or about June 11, 2018, Ms. Ball entered into a painting contract with Mr. Fidman wherein Mr. Fidman would paint Ms. Ball’s home. 7. On or about June 20, 2018, Mr. Fidman began work on Ms. Ball’s home. 8 Mr. Fidman’s painter painted Ms. Ball’s front door. 9. On or about August 9, 2018, Ms. Ball filed a Complaint with the Registrar alleging poor work on the part of Mr. Fidman. 10. On or about September 7, 2018, Registrar Investigator Steve Lawton conducted a jobsite inspection. 11. At the job site inspection, Ms. Ball explained to Investigator Lawton that she complained to Mr. Fidman about the damage to her door. Although Mr. Fidman attempted to replace the door, Ms. Ball rejected the door because the holes on the door were cut about one and a half inches lower than the holes on her existing door. 12. On October 2, 2018, Investigator Allison issued a Directive. The Directive provides, in relevant part, as follows: Complaint Item 1: Noticed damage to the front door; that was just installed on 05/21/2018 was dented and Respondent tried to repair and made door worse.

Investigator’s Observation: It was substantiated as to the damage of the door. Cannot substantiate as to the cause or if the damage was done prior to the painting of the residence. Can substantiate that the door was painted the colors of the trim and that it appears that poor workmanship was done during the repair of the door.

13. The deadline for compliance under the Directive was October 23, 2018. 14. Mr. Fidman failed to repair the door by October 23, 2018. 15. On December 4, 2018, the Registrar issued a Citation against Mr. Fidman alleging that it violated Ariz. Rev. Stat. sections 32- 1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. sections 32-1154(A)(22). 16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 17. Ms. Ball testified on behalf of herself. Mr. Fidman testified on behalf of himself. Investigator Lawton provided testimony regarding his investigation of the complaint and issuance of the Directive. 18. Ms. Ball asserted that Mr. Fidman performed poor work when he painted her door. 19. Mr. Fidman admitted that his painter caused a run in the paintwork on on Ms. Ball’s front door. 20. Administrative notice is taken of the Registrar’s public website on March 12, 2019. According to the information available on the website, Mr. Fidman’s license was first issued on June 8, 2016, and there is only one open complaint against Mr. Fidman’s license. The Registrar has never before taken disciplinary action against Mr. Fidman’s license. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to Ariz. Rev. Stat. section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. As a general principle in construction, a contractor who performs work on top of a surface prepared by another accepts the surface. The contractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the subsequent contractor may obtain an explicit warranty disclaimer.[1] 4. The preponderance of the evidence shows that the issue found by Investigator Lawton constituted a workmanship issue related to the painting of Ms. Ball’s front door. Mr. Fidman admitted that his painter caused a run in the paintwork. There was insufficient evidence presented to establish that Ms. Ball’s door was damaged before Mr. Fidman’s painter began work on Ms. Ball’s front door. Investigator Lawton determined that Mr. Fidman’s painter performed poor work when the door was repaired. Even if Ms. Ball’s door was damaged at the time that Mr. Fidman’s painter began work, a contractor accepts the surface prepared by another contractor, and Mr. Fidman did not obtain an explicit warranty from Ms. Ball. 5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.[2] 6. The preponderance of the evidence shows that Respondent failed to correct the item listed in the Registrar’s Directive without valid justification, which is a 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, the Registrar shall suspend Erik Samuel Fidman, DBA: Sun City Painting’s License No. 305648 for one day. Done this day, February 20, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] No Arizona authority addresses the Registrar’s policy that a subsequent contractor who accepts an existing surface also accepts full responsibility for the outcome. The policy is supported by case law from other jurisdictions. See generally cases cited at “Duty of Contractor to Warn Owner of Defects in Subsurface Conditions,” 73 A.L.R.3d 1213 (1976). A contractor who knew or should have known of a defect in the surface does not perform construction in a workmanlike manner if the contractor fails to notify the owner of the defect and the construction later fails due to the defective surface. See, e.g., Parker v. Thornton, 596 So. 2d 854, 858 (Miss. 1992); Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1199 (Alaska 1975). The principle is based on common sense and a need for fair dealings between contractors and property owners:

For the requirements of public order and the obligation implicit in every contract that the work will be done in a good and workmanlike manner would compel us to reject a contention that an undertaker is not responsible for building upon a site which he knows to be defective. In such a case, the barest standards of care would require him to bring the defect to the attention of the owner before proceeding. The owner would then have an opportunity to make the indicated adjustment in the contract to provide against the defective soil condition of which he had no prior knowledge. . . .

Wurst v. Pruyn, 202 So. 2d 268, 271-72 (La. 1967) (citation omitted). [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.”

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