ALJDEC decisions subject to certification as final

2018A-426-CHC-ROC · Registrar of Contractors · 2018-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Victor P Janule,

COMPLAINANT,

Progressive Painting LLC ,

License No: 0259555 and 259556,

RESPONDENT.

No. 2018A-426-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 18, 2018

APPEARANCES: Victor Janule, Complainant, Diana Janule, Complainant,

Kenneth Muhamad, Respondent, Paulette Mohamad, Respondent Employee,

Matt Gunstra, Inspector, Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson.

FINDINGS OF FACT

Respondent Progressive Painting LLC. (hereinafter, “PP”) is the holder of a CR34 Dual Painting and Wall Covering Contractors’ License numbers 0259555 and 259556 issued by the Arizona Registrar of Contractors (Registrar) on or about October 8, 2009. PP’s qualifying party is Orji Jay Rahsaan. Appearing at hearing for PP is Kenneth Muhamad.

On or about July 15, 2015, Complainant) entered into a contract with PP to prep, apply an elastomeric coating and paint the exterior walls of Complainant’s residence.

On or about January 29, 2018, the Registrar received a Complaint against PP from Complainant alleging Respondent performed poor work. The Registrar assigned the complaint to Investigator Matt Gunstra, who after a jobsite inspection [“JSI”] on February 15, 2018 issued a written directive [“CWO”] to PP on February 23, 2018 which provided as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 3/12/18.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: After initial painting a number of areas started to bubble. Respondent re-sanded and re-sprayed the house. The bubbling reoccurred. Progressive painting has re-sanded the bubbled spots. Repainting has not been done.

Directive: Respondent shall correct by appropriate means.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the CWO, the Registrar issued a Citation against PP charging two possible violations: 1.) violation of Arizona Administrative Code Rule 4-9-108 titled “Minimum Construction Standards,” and, thereby a violation of A.R.S. § 32-1154(A)(3) and 2.) violation of A.R.S. § 32-1154(A)(22) [failure to comply with the CWO].

A hearing was conducted on May 18, 2018 before the Office of Administrative Hearings, an independent agency, to determine whether the allegations of the Citation have merit.

Registrar of Contractors Inspector Matt Gunstra testified that the Complaint was assigned to him on January 24, 2018. A JSI was noticed to the parties for February 15, 2018. On February 15, 2018, the JSI was conducted by Mr. Gunstra Mr. Gunstra testified that, typically, Complaints with contracts or start dates older than two years fall outside the jurisdiction of his Agency. However, he said, according to the Complainant, the work and repairs on this job continued well into late 2017 - even as late as January 2018. So, he concluded, the work he observed at the JSI had been done well within two years of the filing of the Complaint.

At the February 15, 2018 JSI, present was the Complainant, a representative of PP and a representative from Dunn Edwards paint [Mr. Wade Gresham]. Mr. Gunstra’s jobsite notes from the JSI reveal:

Complainant stated that the first issue with the paint was observed about 3 months after substantial completion. Respondent sanded and repainted at this time. Respondent returned in summer of 2016 to make further repairs and then again in late 2017. This brings the repairs into ROC 2 year jurisdiction.

Investigator’s Observation: I observed that there are sections of the exterior paint that have been sanded down but not repainted. This is mainly at the garage doors but there are spots around the home. I also observed a section of repainted stucco over the garage that has bubbles in the paint. It appears that the bubbling of the paint has not been properly corrected by Respondent. I cannot determine why the paint is bubbling or what the proper remedy is, however, Respondent's work does not meet ROC standards at this time and is not complete.

Governing Rule: Workmanship Rule: ROC Workmanship Standard for Paint.

Mr. Gunstra issued his CWO on February 23, 2018. The CWO provided, in pertinent parts, as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 3/12/18. [Emphasis is in the original]. You are hereby directed to remedy the following violations by the appropriate means:

Directive: Respondent shall correct by appropriate means.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Mr. Gunstra noted that although it has not be determined, to his knowledge, why the paint on this job has been repeatedly bubbling, the contractor is deemed to have accepted the substrate and is expected to use the proper paint required for the surface and conditions. He said that bubbling paint surfaces are below workmanship standards because paint should not bubble.

Mr. Gunstra conferred with the Complainant on March 13, 2018, the day after the CWO’s stated deadline for compliance. At that time, the Complainant advised by telephone that PP had again sanded some of the surfaces with areas of bubbling paint, but that repainting had not be done. On March 13, 2018, the Citation in this case was issued by the Registrar.

The Complainant, Victor P Janule, testified that he engaged PP to paint his 4,800 square foot residence. The Complaint itself, he pointed out, only pertains to the East wall – which is where 95% of the surface paint bubbling had occurred. Mr. Janule posited several theories in an effort to explain why the paint surface was bubbling, but presented no credible evidence in support of a causation in this record. He did confer, along with PP representatives, with other paint contractors in an effort to get his home painting completed, but none of the contractors contacted would accept the job to repair PP’s work. Mr. Janule admits that PP has been to the residence multiple times since they first painted the home and has made numerous sanding, repainting and other repair efforts to resolve the bubbling paint issue. To date, PP has been unsuccessful.

Complainant admitted in testimony that PP suggested a sub-contractor be hired to take on the repairs. Mr. Janule admited that he refused to allow PP to engage a sub-contractor to perform the repair work on this job because, Mr. Janule said, he was concerned that if someone else began work on the paint job that PP would “be let off the hook” and that “I did not know whether Progressive Painting would pay for the sub-contractor.”

Ms. Paulette Mohammad, an employee for the Respondent, testified that she has provided security for PP for the past 8 years. She said PP has been to the Complainant job site for an unusually high number of times. She referred to reviewing over 20 work orders for PP to go out to this job site to fix paint bubbles. She said she spoke to Mr. Janule at least 40 separate times about scheduling repair work for the bubbling paint issue. Per the work orders for this client, PP, she said, would take off all the paint, sand the surface down and start all over again. PP had both Sherwin Williams and Dunn Edwards representatives come to examine the site for them. She said no one had any solutions to offer and no one was able to say why the bubbling condition was occurring.

Referring to a March 12, 2018 e-mail from PP to Mr. Gunstra, Ms. Paulette Mohammad said that PP had decided that since it was not able to determine the cause of the paint’s bubbling and, after repeated efforts to remove the surface and re-paint, PP had determined to utilize another contractor to do the repairs needed in this matter. She said Mr. Janule refused to permit a sub-contractor to be used by PP on this job.

Mr. Kenneth Mohammad, Respondent’s job supervisor, testified that he has spoken to the Complainant at least 40 times since the bubbling of paint on his paint job had occurred. He said he went to the Complainant’s home over and over to sand off the bubbled paint and make a paint repair. Still, paint bubbling reappeared. He said PP changed the paint product and even had a chemist from Sherwin Williams paint examine the locations where bubbling was occurring. The Sherwin Williams’ chemist, Mr. Mohammad said, had no explaination for what was causing the paint to bubble.

In April of 2017, Mr. Mohammad suggested to Mr. Janule that another contractor be called in. He said Mr. Janule agreed and several contractors came to the site to evaluate undertaking the repair. None of the contractors would agree to take on the job because, Mr. Mohammad said, “they had never seen such a problem and would not do the work.”

Mr. Mohammad testified that he spoke to Mr. Janule at the JSI, to advise that PP had decided that they wanted MBD Design Builders, Inc., - a contractor that Mr. Janule had received a bid from – to sub-contract the repair work. Mr. Mohammad testified that Mr. Janule refused to allow another contractor to do the repair work. He stated that Mr. Janule was adamant, “No, you are on the hook and I do not want you using somebody else. You can’t bring someone else on my property.” Mr. Mohammad submits, therefore, that PP was not permitted back on the site to remedy the item in the CWO.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on June 4, 2018. Such prior License record reflects that Respondent’s License numbers 0259555 and 259556 have never been subject to discipline as a result of a Complaint or otherwise.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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.

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

PP is not an unscrupulous, unqualified, and financially irresponsible contractor

As a general principle in construction, a subcontractor who performs work

on top of a surface prepared by another accepts the surface. The subcontractor 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 or general contractor’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 contractor may obtain an explicit warranty disclaimer.” Deeb v. Checks Epoxy, No. 2014A-3258 (ALJ Decision at 11:11–19).

Although Respondent has demonstrated that there has been no direct or proximate cause established for the paint bubbling that occurred on this job, the contractor is deemed to have “accepted the surface” when it undertook to paint Complainant’s residence. “A professional licensed contractor must comply with the workmanship standards, and if it cannot comply with the standards, it must not undertake the job.

Therefore, as to the issue of poor workmanship in this case, the evidence established that the paint application and the attempted repairs resulted in persistent paint bubbling which, by a preponderance of the evidence, is poor workmanship. Therefore, Complainant did meet its burden of proof to establish that Respondent failed to perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

After repeated and reasonable efforts, PP determined it did not have the expertise or knowledge to respond to the CWO properly. It is established that PP was under a duty to comply with the CWO “...to remedy the...violations by the appropriate means.” [Emphasis added]. By a preponderance of the evidence, it is established that the “appropriate means” chosen by PP was to bring a sub-contractor into the job to effect repairs.

By a preponderance of the evidence, it is demonstrated that Complainant rejected and refused to allow Complainants to engage MBD Design Builders, Inc., - the contractor that Mr. Janule had received a bid from – to sub-contract the repair work.

Respondents are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.”

BB Ewing Property Management v. Khart Management LLC No. 2015-1168(ALJ Dec. 15:19–25).

Similarly, “Unless expressly waived, the right to cure is implied in every contract as a matter of law.” Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law, § 18:15 (West Group 2002). Therefore, by a preponderance of the evidence, 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. The Complainant has failed to meet its burden of proof to prove PP violated A.R.S. § 32-1154(A)(22).

Considering the nature of the violation and that Mr. Janule refused to allow PP access to bring in a licensed subcontractor to comply with the CWO, PP should be afforded an opportunity to remedy by appropriate means the area where paint bubbling has occurred. In the alternative, if the parties can reach and conclude a financial arraignment that is satisfactory to both parties, then this matter should be dismissed.

RECOMMENDED ORDER

IT IS RECOMMENDED that thirty days after the effective date of the final Order in this matter, Progressive Painting LLC, license numbers 0259555 and 259556 are suspended for one day unless the Registrar of Contractors receives sufficient proof that Progressive Painting LLC has complied with the CWO.

PROVIDED THAT, Complainant Victor P Janule must allow Progressive Painting LLC and its subcontractors reasonable access to make the required repairs ordered herein.

IN THE ALTERNATIVE, if within thirty (30) days after the effective date of the Final Order in this matter the parties file with the Registrar sufficient proof that the parties have reached and concluded a financial settlement and resolution, then Progressive Painting LLC licenses will not be suspended as ordered hereinabove.

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.

Ordered this the 5th day of June, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By:____________

Done this day, June 5, 2018

/s/ Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors