FINACT2018A-3817-ROC.pdf

2018A-3817-ROC · Registrar of Contractors · 2019-03-28

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Kathryn A. Kessler, Case No. 2018-3817 COMPLAINANT, Docket No. 2018A-3817-ROC v. D and D Paintscapes Inc., FINAL ADMINISTRATIVE DECISION License No. ROC 260292, 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.

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar has reviewed the Decision and modifies it.

BACKGROUND

On September 20, 2018, Investigator Lisa Melton issued a written directive to Respondent to

make corrections to work it had performed. ALJ Dec. 3:6-8. On November 29, 2018, Investigator

Melton conducted a compliance inspection and determined that the poor work had not been corrected.

ALJ Dec. 4:17-20. The Registrar subsequently issued a citation against Respondent, charging a possible

violation of A.R.S. § 32-1154(A)(3). ALJ Dec. 1:27-30. At the hearing, Respondent admitted that its

workmanship needed correction. ALJ Dec. 5:1-5. Respondent further admitted the poor work at issue

had not been corrected. Id.

MODIFICATION AND WRITTEN JUSTIFICATION

Under A.R.S. § 32-1154(A)(3), the Registrar may suspend or revoke a contractor’s license for a

“[v]iolation of any rule adopted by the registrar.” Under A.A.C. R4-9-108(A), “[a] contractor shall

perform all work in a professional and workmanlike manner.”

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 The administrative law judge determined that the evidence established that the Respondent

violated Rule 4-9-108, and thereby A.R.S. § 32-1154(A)(3). ALJ Dec. 6:22-26. However, the

administrative law judge concluded that despite having authority to discipline Respondent for its

violation, it would be inappropriate to discipline Respondent. ALJ Dec. 6:27-29. Instead, the

administrative law judge recommended Respondent be afforded an additional opportunity to correct the

work. ALJ Dec. 7:12-14. But Title 32, Chapter 10 of the Arizona Revised Statutes does not entitle

Respondent to an additional opportunity to correct poor workmanship after a citation. The Registrar

previously afforded Respondent an opportunity to correct it’s poor workmanship, and Respondent failed

to do so.

After review, the Registrar finds that discipline is appropriate for Respondent’s violation of A.R.S.

§ 32-1154(A)(3). The Registrar hereby modifies the Administrative Law Judge Decision, so that on the

effective date of this order, Respondent’s License No. 260292 is suspended for one day.

CONCLUSION AND ORDER

The Registrar hereby modifies the Decision by:

• Striking p. 6, ¶ 11.

• Striking p. 7, ¶ 12.

• Replacing the Recommended Order, p. 7, lines 12-17 with It Is Ordered on the effective

date of the Final Order in this matter, Respondent’s License No. 260292 shall be

suspended for one day.”

The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which

becomes effective on May 6, 2019.

FINAL NOTE

On page 1, line 24 the Registrar replaces “December 26, 2018” with “December 6, 2018.” On

page 2, line 17 the Registrar removes and replaces “and it appears that the second Directive was never

actually issued” with “The Registrar’s Directive was issued in this matter on October 9, 2018. On page

3, line 8, the Registrar replaces “September 20, 2019” with September 20, 2018.

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated March 27, 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 March 27, 2019 to: Respondent D and D Paintscapes Inc 49822 N 21st Ln New River, AZ 85087-8036 Frederick C. Thomas, Esq. Thomas Law PLLC 11811 N Tatum Blvd Ste 4020 Phoenix, AZ 85028 Complainant Kathryn A. Kessler 7015 W Saint John Rd Glendale, AZ 85308

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Case No. 2018-3817 / AN

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762