ALJDEC decisions subject to certification as final

2018A-417-CHC-ROC · Registrar of Contractors · 2018-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bernard J. and Patricia A. Bialach,

COMPLAINANT,

v.

John and Diane's Painting Inc,

License No: 269374

RESPONDENT.

No. 2018A-417-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 21, 2018, 9:00 A.M.

APPEARANCES: Complainant Patricia Bialach appeared on her own behalf; John Hendrix, Qualifying Party, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. John and Diane's Painting, Inc., (Respondent), is the holder of

License Number 269374 issued by the Registrar of Contractors (Registrar).

2. On or about January 29, 2018, Bernard and Patricia Bialich (Complainant), filed a Complaint against Respondent with the Registrar for poor work in connection with exterior painting performed by Respondent at Complainant’s residence in Overgaard, Arizona.

3. After an inspection of the job site on February 20, 2018, the Registrar issued a Directive dated March 6, 2018, requiring Respondent to remedy various alleged violations by March 23, 2018, as follows:

1. The stain on the exterior siding is bubbling in several location. Correct by appropriate means.

2. There is a green tint in the stain of the areas previously corrected. Correct by appropriate means.

3. There was not a proper contract executed per ARS 32-1158 for this job. Provide a sample (Template) contract in compliance with ARS 32-1158 to the Investigator prior to the due date mandated on this document.

4. After a March 26, 2018, compliance inspection, the Registrar issued a Citation to Respondent on March 28, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. 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 for May 21, 2018, at 1:00 P.M. At the hearing, Complainant Patricia Bialich testified on her own behalf; John Hendrix, Qualifying Party, testified on behalf of Respondent. Chris Allison, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 7.

6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that he observed the bubbles on three or four exterior boards near the front porch within a two and a half foot x three foot area and near the back porch within a two foot by two foot area. He stated the areas were not exposed to direct sunlight and that without performing constructive testing, there was no way to determine if oil or moisture in the wood was causing the bubbles.

7. Complainant testified that the areas in question were tacky from original oil stain and that there was no sanding done on the original job. She stated she believed all oil should have been removed before staining. She further testified that eight boards contained bubbles with some as large as one-half inch wide. (Complainant’s Exhibit 7).

8. John Hendrix testified on behalf of Respondent that he has been back to the residence four times to correct the issues. He stated the job entailed the application of latex staining (when the weather was dry) of the exterior of a two story home and that the bubbling appears in less than one per cent of the home. He further stated the home consisted of six inch wide rounded wooden boards and that bubbles appear only on three to five boards. He said if it was ineffective prep work, the bubbling would be apparent throughout the exterior instead of only on select confined areas and that in the areas where there are bubbles, there are no bubbles on the boards above and below the board with the bubbles.

9. He further stated that on the last occasion to attempt to correct the issue after the Directive was issued, he used a power sander to sand down the areas to bare wood as much as they could which even created flat spots on the rounded boards. He stated that within hours of re-staining, the bubbles would return. Mr. Hendrix further testified that the greenish tint on the areas resulted from the application of a primer to attempt to stop the bubbles, which did not stop the bubbles. He stated he can only conclude that there is something defective in the boards and that those few boards need to be replaced. He stated Respondent is willing to return to stain once the defective boards are replaced.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, a 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).

4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

3. Violation of any rule adopted by the registrar.

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22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Complainant has failed to present sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Complainant has not satisfied its burden to show that Respondent’s work was the cause of the bubbling condition. As the Investigator testified, the true cause of the bubbling could not be determined without destructive testing. Indeed, because Respondent sanded the bubbling areas down to the bare wood and the bubbling returned within hours after re-staining, it would seem that the pre-existing condition of those few wood boards on which bubbling occurred was more likely to be the cause of the bubbling. Further, there was no evidence presented to show that Respondent should have been aware of this possible condition of bubbling before the work started.

7. Complainant has further failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Respondent attempted to correct the issue on four different occasions, whether originally caused by Respondent or not, and there was no evidence presented that there was anything further Respondent could do to correct the issue. Respondent attempted to prime the problem areas (which caused a tint) which did not prevent the bubbles from reoccurring, and then sanded the areas down to the bare wood and the bubbles immediately returned. Again, it would appear the bubbling is not caused by the application of the stain.

8. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in Case No. 2018A-417 shall be dismissed.

. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, June 10, 2018.

/s/ Roger Geddes________

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors