ALJDEC decisions subject to certification as final

2018A-3817-ROC · Registrar of Contractors · 2019-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 13, 2019 APPEARANCES: Kathryn Kessler on her own behalf; Frederick C. Thomas, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On December 18, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 13, 2019 at the Office of Administrative Hearing. 2. Respondent D and D Paintscapes Inc. holds license No. 260292 issued by ROC. David R. Naslund is D and D’s qualifying party. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint. The Notice of Hearing does not provide the date the Citation was issued or when the complaint was issued or filed. There appears to be no dispute that the Citation was issued on December 26, 2018 or that the complaint was filed on August 13, 2018. 4. Through the Citation, ROC alleges that D and D may have violated Ariz. Rev. Stat. section 32-1154(A)(3). The Citation shows that if the Administrative Law Judge finds that the alleged charge is valid, ROC may suspend or revoke D and D’s license. 5. The Citation shows that ROC could not determine whether D and D has actually committed the alleged violation, which is why the matter was set for hearing. The Citation also shows that the Citation itself is not evidence that D and D has violated any statute or rule. 6. In May 2018, Complainant Kathryn Kessler and her husband Charles Kessler contracted to have D and D paint their kitchen cabinets. 7. D and D used Dunn Edwards Aristoshield[1] paint, which he recommended, in a dark color with a semi-gloss finish, both of which were chosen by the Kesslers. Dark colors and semi-gloss paints will show imperfections more readily than light colors and flat or egg shell finishes. 8. On or about May 14, 2018, D and D completed the work. At that time, the cabinets looked “blotchy.” Although the paint was dry, Mr. Naslund’s opinion was that this condition would rectify itself as the paint cured, which can take two weeks. 9. After about two weeks, Mr. Naslund returned to the house with a representative from Dunn Edwards. According to Mr. Naslund, the Dunn Edwards’ representative suggested light sanding and repainting to correct any deficiencies. 10. At that time Mr. Naslund agreed that there was some paint overspray that required correcting and one area where some paint was peeling or chipping. D and D did some touch-up work with either brushes or rollers. 11. At some point, D and D repainted the front of one cabinet door as an example for the Kesslers. Ms. Kessler was not satisfied with the result. Mr. Naslund’s opinion was to the effect that her expectations were too high considering that a dark semi- gloss paint was being used. 12. The Kessler’s were not satisfied with D and D’s remedial work and the parties discussed settlement. They reached a settlement in principle in which D and D would refund to the Kesslers their entire purchase price. The Kesslers ultimately decided against that option because they were concerned that they would have no recourse if other problems arose. 13. The Kesslers made a counter offer to D and D, the full terms of which are not in the record. Mr. Kessler however testified to the effect the Kesslers believe that D and D should be held responsible for any damage that occurs if they decided to replace their cabinets, even if that damage is caused by a contractor hired by the Kesslers. 14. D and D declined the Kesslers’ counter offer, and on August 13, 2018 Ms. Kessler filed with ROC her complaint against D and D. 15. ROC investigator Lisa Melton conducted a job site investigation on September 20, 2019. On October 9, 2018, ROC issued to D and D a Directive through which it ordered D and D to make corrections to the work it had performed.[2] 16. After ROC ordered D and D to do so, it made repairs by sanding and repainting the cabinets, but Ms. Kessler was not satisfied that these were completed properly. 17. Ms. Melton and ROC investigator Stephen Lawton conducted a Compliance Jobsite Inspection on November 20, 2018. 18. ROC’s administrative record has a second Directive that was signed by Ms. Melton.[3] The second Directive is dated December 6, 2018, but shows that any corrective work by D and D had to be completed on or before October 25, 2018, and it appears that the second Directive was never actually issued. 19. On December 6, 2018, ROC issued to D and D a Citation. 20. As pertinent to this matter, ROC’s Workmanship Standards provide: DEFINITIONS The following standards are expressed in terms of permissible tolerances. The format is designed for easy comprehension as follows: PD Possible deficiency A brief statement of the problem to be considered. AT Acceptable tolerance A statement in measurable terms above which repair may be required and below which the condition is considered to be acceptable. “None” means that the possible deficiency identified is completely unacceptable and no tolerance is allowed. CR Contractor responsibility A statement of the corrective action needed to correct the deficiency or damage. **** PAINTING **** 4. PD Interior paint inadequately covers surface. AT Interior paint should be applied in an amount conforming to manufacturer's specifications of coverage and in sufficient quantity to visually cover all specified areas. CR The contractor should retouch all surfaces where inadequate paint has been applied to cover original surfaces. Paint deterioration caused by normal living conditions, such as repeated scrubbing or scouring is a maintenance item and should be the responsibility of the owner. 21. At the hearing, Ms. Melton testified as to her opinion that D and D’s work was in violation of the applicable workmanship standard at the time of the compliance jobsite inspection because the paint was uneven with hazing present, a chip could be seen, and the location where the hardware had been removed was obvious. 22. Ms. Melton testified that at the compliance inspection she observed one chip in the paint, but she did not offer any testimony as to the extent of the other problems she observed (i.e., whether these are isolated or pervasive). 23. Ms. Melton acknowledged that she had not reviewed the manufacturer’s specification for the paint used and she did not dispute that there was adequate paint to cover the cabinets. She nevertheless was of the opinion that there was a workmanship violation based on her observations that there was hazing and that at the locations where the hardware had been removed there were bare spots. 24. Although D and D argued to the effect that its work was within ROC’s acceptable tolerance because it had followed the manufacturer’s specifications and had applied the paint in sufficient quantity to visually cover the cabinets, Mr. Naslund acknowledged that there were some areas that required touch-up, which he considered to be “punch-list” items. D and D is willing to do any required touch-up work. 25. Mr. Naslund acknowledged that there were two areas with drips or “spit” marks resulting from the second application of paint to the cabinets. 26. Mr. Kessler was of the opinion that D and D had not properly prepared the cabinets before applying the paint, but there was no substantial evidence to support this testimony (e.g., manufacturer’s specifications or industry standards). 27. Mr. Kessler testified that the blue tape typically used to mark painted surfaces caused paint to peel when removed from the cabinets about a week after the paint was applied. This would have been before the paint fully cured and there is no evidence to show when the tape was actually applied to the painted surfaces (i.e., how soon after the paint was applied was tape applied). 28. Mr. Kessler testified that the Kesslers are unwilling to allow D and D back in their house to any work. Ms. Kessler confirmed that they were unwilling to allow D and D to perform any repairs, and she informed the tribunal that the Kesslers’ objective was to gain access to ROC’s Recovery Fund. CONCLUSIONS OF LAW 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. 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). 4. 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."). 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. 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). 7. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 8. Ariz. Rev. Stat. section 32-1154(A) provides that 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.

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 10. The preponderance of the evidence shows that D and D violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner. In particular, the evidence shows that at the time of the compliance jobsite inspection, there were areas of hazing and the areas from which the hardware had been removed were not properly covered with paint. 11. Although ROC has authority to discipline D and D’s license based on the now proven violation of section 32-1154(A)(3), in this case discipline is not appropriate, and instead the appropriate solution is for D and D to make any required repairs. 12. Facts that support this conclusion are: prior to the hearing, ROC was unable to determine whether any workmanship violation had actually occurred, meaning that this Decision will be the first time a deficiency on D and D’s part has been proven to exist;[4] ROC’s Workmanship Standards show that the remedy for a proven deficiency such as this one is to have the contractor retouch the affected areas; D and D has stood by its work throughout the process in that it has been willing to make any required repairs and it was willing to provide the Kesslers with a complete refund; D and D has not been shown to be unqualified, unscrupulous, or financially irresponsible; and ROC’s website shows no other complaints against D and D and no disciplinary action against its license. RECOMMENDED ORDER IT IS RECOMMENDED that on or before the effective date of the final Order in this matter D and D Paintscapes Inc. must complete the repairs set out ROC’s Directive; IT IS FURTHER RECOMMENDED that if Ms. Kessler is unwilling to provide D and D Paintscapes Inc. with access to make the required repairs, then the matter 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, February 26, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Aristoshield is a registered trademark. [2] This Directive shows that D and D’s work failed to meet the workmanship standard, but this finding is not consistent with the Citation that shows that ROC could not confirm that D and D had committed any violations. [3] Although Ms. Melton’s notes and the second Directive show that ROC had determined that D and D’s work failed to meet the workmanship standards, these are not consistent with ROC’s Citation that shows ROC could not determine whether a violation had in fact occurred. [4] Assuming ROC agrees that it has actually been proven that D and D committed the alleged violation.

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