ALJDEC decisions subject to certification as final
2018A-641-CHC-ROC · Registrar of Contractors · 2018-07-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
William Dean Marshall,
COMPLAINANT,
v.
Michael Joseph Halliday Jr
DBA: Gold Canyon Painting,
License No: 207382
RESPONDENT.
No. 2018A-641-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
FINDINGS OF FACT
Background and Procedure
1. Michael Joseph Halliday, Jr., DBA: Gold Canyon Painting (Respondent), is the holder of License Number 207382 issued by the Registrar of Contractors (Registrar).
2. On or about February 9, 2018, William Marshall (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with exterior painting by Respondent at Complainants’ residence in Queen Creek, Arizona. The Complaint reflected a contract date of June 9, 2016, for the contract amount of $1,500.00. (Complainant’s Exhibit 1).
3. Upon completion of an inspection performed by the Registrar on March 8, 2018, the Registrar issued a Directive, dated March 9, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 26, 2018, as follows:
Stucco cracks not filled/wood poorly sealed and primed.
Paint peeling off of the garage doors.
Lack of paint coverage over entire house/light spots.
Overspray on concrete and block walls.
Paint flaking off of house.
4. After a compliance inspection was conducted on April 11, 2018, at which it was observed that corrective work had not been satisfactorily completed, the Registrar then issued a Citation to Respondent, dated April 12, 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)(4) (failure to comply with social security, workers' compensation or unemployment insurance statutes or rules);
c. A.R.S. § 32-1154(A)(9) (aiding or abetting an unlicensed person to evade chapter or knowingly or recklessly combining with an unlicensed person);
d. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
e. 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 June 18, 2018, at 8:30 A.M. Complainant William Marshall testified on his own behalf and presented the testimony of Summer Marshall. Respondent Michael Halliday testified on his own behalf. Steve Nelsen, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 10.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections 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 that at the compliance inspection the corrective work performed made the deficiencies worse. He further testified that only Directive Item No. 1 regarding the stucco cracks was fully corrected.
7. Complainant William Marshall testified that he never met or dealt with Respondent until after the subject Complaint was filed. He stated that after the initial work was completed, he only dealt with Respondent’s brother, John Halliday, who stated he was an owner of the company and that he would come out and take care of the issues.
8. Summer Marshall, wife of Complainant, testified that she initially called another company for a painting bid and that company referred her to Gold Canyon Painting. She stated that Joe Halliday, Respondent’s cousin, came out and gave her a bid on a Gold Canyon Painting bid form. (Complainant’s Exhibit 1). She stated that Joe Halliday and Respondent’s grandfather, Joe Stewart, painted the residence. She stated that on line reviews of Gold Canyon Painting reference a “John,” and a “Joe.”
9. Respondent testified that he did not dispute the existence of the Directive items and that Complainant received a terrible job. He stated he did not do the job, was out of town when the job was done, and was not even aware of the job being done. He testified that he eventually became aware that the job had been done by Joe Halliday, his cousin, who he stated no longer lived in the area, and Joe Stewart, his grandfather, who he stated is now deceased. He stated that his cousin had had a painting business, Grand Canyon Painting, and that he believed his grandfather, who had lived with him at the time, mistakenly used a Gold Canyon Painting bid form rather than a Grand Canyon Painting bid form. He further stated he wanted to press charges against his estranged cousin.
10. Mr. Halliday further testified that he took it upon himself to address the Directive and because he was out of town after the Directive was issued, contacted an associate at Gilbert’s Painting or 6 Sons Painting who had a worker come out to do the corrective work before the Directive deadline. He testified that the worker came out on three separate occasions to do corrective work.
11. Respondent further testified that he did not have any employees but that occasionally his brother would work with him. He stated he was in the process of getting estimates for workers’ compensation insurance in any event.
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 in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
3. Violation of any rule adopted by the registrar.
4. Failure to comply with the statutes or rules governing social security, workers' compensation or unemployment insurance.
...
9. Aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person, allowing one's license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter.
...
12. Failure in any material respect to comply with this chapter.
...
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. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
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. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:
...
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
7. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform work in a professional and workmanlike. While Respondent did not contest the existence of the Directive items, Respondent’s testimony was credible that he did not take part in or authorize the initial work. However, while it is commendable that Respondent undertook to perform corrective work for a job for which he had no involvement, once he did so, he was required to proceed in a professional and workmanlike manner. The evidence reflected that he authorized the corrective work to be done by another company or individual and as a result, Respondent assumed responsibility for any work they performed. The evidence further reflected that this corrective work performed by others did not remedy the Directive items, with the exception of Directive Item No. 1.
8. Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(4) for the failure on the part of Respondent to comply with the statutes or rules governing social security, workers' compensation or unemployment insurance. Respondent testified he had no employees. However, even if Respondent had others work with him on other jobs, there was no evidence presented to show that these individuals were employees as opposed to independent contractors.
9. Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(9) for aiding or abetting a licensed or unlicensed person to evade Chapter 10 of Title 32 of the Arizona Revised Statutes, or knowingly or recklessly combining or conspiring with an unlicensed person, or allowing his license to be used by a licensed or unlicensed person. The evidence presented established that Respondent did not authorize and was unaware that his cousin and grandfather were performing Complainant’s job under the Gold Canyon Painting name. There was further no evidence presented that Respondent authorized the use of his license.
10. Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract. The evidence presented showed that Respondent’s bid form is deficient in that it did not include the required disclosure of the notice of the owner’s right to file a complaint with the Registrar. However, while it may be surmised that Respondent may have used this form on other jobs, there was no evidence presented that Respondent used or authorized the use of this bid form on any job. The evidence reflected that the use of this particular bid form on Complainant’s job, in addition to the job itself, was not authorized by Respondent.
11. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to perform appropriate corrective action. As stated above, the evidence reflected that the corrective action which Respondent authorized was not performed in professional and workmanlike manner.
12. Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Michael Joseph Halliday, Jr.’s, DBA: Gold Canyon Painting, License Number 207382 is suspended for two days.
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, July 9, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors