FINACT2018A-426-CHC-ROC.pdf

2018A-426-CHC-ROC · Registrar of Contractors · 2018-07-18

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Victor P. Janule, Case No. 2018-426 COMPLAINANT,

Progressive Painting LLC, License No. 259555, 259556, Docket No. 2018A-426-CHC-ROC RESPONDENT. FINAL ADMINISTRATIVE DECISION AND ORDER

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.

MODIFICATION AND WRITTEN JUSTIFICATION

The Administrative Law Judge Decision finds that Respondent violated A.R.S. § 32-1154(A)(3),

but did not violate A.R.S. § 32-1154(A)(22) because the Complainant effectively denied Respondent

access to the property to comply with the Corrective Work Order. See ALJ Dec.8:9-12; and 9:14-15. But

instead of dismissing the case, the administrative law judge determined that, despite Complainant’s denial

of access, “PP should be afforded an opportunity to remedy by appropriate means the area where paint

bubbling has occurred.” ALJ Dec. 9:17-19. Ultimately, the administrative law judge recommended that the Registrar suspend Respondent’s license for one day unless Respondent complied with the Corrective Work Order within 30 days of the Final Order’s effective date, provided that Complainant provides reasonable access to the property. See ALJ Dec. 10:2-8. The administrative law judge recommended in the alternative, that if the parties reach a financial settlement or resolution, then the Registrar should not discipline Respondent’s license. See ALJ Dec. 10:9-12.

1 of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 The Registrar modifies the Administrative Law Judge Decision to dismiss the case against Respondent. Despite finding that Respondent had a valid justification for failing to comply with the Corrective Work Order because Complainant denied access to the property, the administrative law judge effectively ordered Respondent back to Complainant’s property to perform the work. See ALJ Dec. 10:2-8. In essence, the Administrative Law Judge Decision attempts to reset the matter to allow Complainant an additional opportunity to provide Respondent access to the property, in order for Respondent to make repairs. While A.R.S. § 32-1154(A)(22) requires a contractor to take appropriate corrective action to

comply with a written directive within a reasonable period of time, it also provides that “[t]he written

directive shall set forth the time within which the contractor is to complete the remedial action.”

Here, the written directive issued in this matter set forth a deadline of compliance of 5:00 p.m. on

March 12, 2018, that was the “reasonable period of time” by which Respondent was required to comply

with the written directive. See ALJ Dec. 3:26-29. However, the administrative law judge also determined

that “Respondent has proven that Complainant’s refusal to cooperate in PP’s decision to bring in a

licensed sub-contractor to finish the CWO work that PP was unable over months and months of its efforts

to repair, is a refusal of access to and cooperation with PP – which refusal is a reasonable valid

justification for PP’s failure to comply with the CWO.” ALJ Dec. 9:10-14 (emphasis in original). As

such, Complainant’s actions prevented Respondent from complying with the written directive within a reasonable period of time, the deadline set forth by the Registrar in the written directive, and Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(22). See ALJ Dec. 9:14-15. Even though Complainant established a violation of workmanship standards, the inability of Respondent to proceed with corrective action due to Complainant’s rejection of Respondent’s proposed corrective work negates a finding of a violation of § A.R.S. § 32-1154(A)(3). CONCLUSION AND ORDER The Registrar modifies the Administrative Law Judge’s Decision by: • Replacing the Recommended Order on page 10 with the following: o “IT IS RECOMMENDED THAT on the effective date of the Final Order in this matter, Case No. 2018-426 be dismissed.” The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which becomes effective on August 12, 2018. FINAL NOTE The Registrar replaces license number “0259555” found on the caption, page 1, ¶ 1, page 6, ¶ 17, of the Decision, and the Recommended Order with, “259555.” The Registrar replaces, “July 15, 2015” found of page 1, ¶ 2, of the Decision with, “July 10, 2015” and “Dunn Edwards” found of page 3, ¶ 7,

with “Sherwin Williams.”

Dated this 3rd day of July 2018.

Registrar of Contractors

/s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund Copy mailed via USPS First Class mail and via electronic mail this 3rd day of July 2018 to:

Respondent Progressive Painting, LLC. 4643 S. 32nd St. Phoenix, AZ 85040-2807 Complainant Victor P. Janule PO Box 30430 Mesa, AZ 85275-0430

Case No. 2018-426/jo

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