ALJDEC decisions subject to certification as final

2019A-00539-CHC-ROC · Registrar of Contractors · 2020-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Scott J. Brady,

COMPLAINANT,

v.

Southwest Coating Solutions, LLC,

ROC License: ROC 317816

RESPONDENT.

No. 2019A-00539-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 22, 2020

APPEARANCES: Complainant Scott J. Brady appeared on behalf of himself. Mandy Scott appeared on behalf of Respondent Southwest Coating Solutions, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On August 13, 2019, the Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on September 13, 2019, by the Office of Administrative Hearings in Phoenix, Arizona.

Southwest Coating Solutions LLC (Southwest Coating) holds License No.

ROC 317816 issued by the Registrar.

The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Southwest Coating may have violated violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22). The Registrar also alleges that Dreamstyle may have violated Ariz. Rev. Stat. section 32-1158(B).

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Southwest Coating Solutions LLC (Southwest Coating).

5. On or about August 6, 2018, Mr. Brady and Southwest Coating entered into a residential repair construction contract.

6. Southwest Coating did not provide Mr. Brady with a contract which advised him of his right to file a complaint with the Registrar against Floor Store for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

7. On or about September 5, 2018, Southwest Coating began work on

Mr. Brady’s home.

8. On or about November 28, 2018, Southwest Coating stopped work on

Mr. Brady’s home.

9. On or about February 1, 2019, the Registrar received a Complaint from Mr. Brady alleging poor workmanship on the part of Southwest Coating in connection with a residential repair contract.

10. On or about March 26, 2019, Registrar Investigator Beau Cruz conducted

a jobsite inspection.

11. On April 1, 2019, Investigator Cruz issued a Directive.

12. The April 1, 2019 Directive provides, in relevant part, as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 16, 2019. You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Epoxy on appliances

Floor epoxy residue on kick plate of refrigerator, floor epoxy residue and tape on kick plate on dishwasher kick plate, on cabinet toe kicks, and on dishwasher door panel, floor epoxy residue on cabinet toe kick to left of kitchen sink, as well as other toe kick of cabinets throughout the structure.

Complaint Item 2: Epoxy on walls/doors

Epoxy residue on door and door jambs of kitchen pantry, epoxy residue on hall wall and baseboard, epoxy residue on garage fire door and threshold, epoxy residue on door and door jambs of powder room, epoxy residue on tiled wall behind toilet, and both vanity legs of powder room, epoxy residue on door and door jambs of laundry room, epoxy residue toe kick for laundry room cabinet, epoxy residue on door and door jambs and jamb trim casing of front entry coat closet, epoxy residue on cabinet toe kick of office room, and epoxy residue master bathroom, master bathroom door and door jambs and jamb trim casing of master bathroom linen closet, and back side of master bathroom water closet room, and central vacuum connection port in master bathroom is partially covered by epoxy and epoxy coated tape, floor tile at entrance to master bathroom walk-in shower covered by epoxy and epoxy coated tape. It should be noted that majority of doors, door jambs, casing trim and cabinet toe kicks have epoxy residue (overspray) as well as bases of columns in front entry area and entrance to kitchen and study.

Complaint Item 3: Divots in epoxy

Divots (recesses) in the surface of the epoxy floor coating in the master bathroom at bases of cabinets, in the surface of the epoxy floor coating and tape residue on west side of kitchen island counter cabinets, by right leg of vanity in the powder room. Divots around bases of columns in front entry area and entrance to kitchen and sitting/study room as well as other areas in the structure.

Complaint Item 4: Wood chips/tape in epoxy

Debris under the epoxy floor coating in the powder room floor, debris under the epoxy floor coating in the master bathroom water closet floor at right side of toilet as well, as throughout epoxy floor coating throughout residence.

Complaint Item 5: Dirt/Bugs/Hair in epoxy

Epoxy floor coating on the carpet of master bedroom at entrance to master bathroom as well, and throughout epoxy floor coating throughout residence.

Complaint Item 6: top coat peeling

Top coat peeling off epoxy floor coating in the master bathroom near the tub area, by patio door from kitchen to rear patio area, north post of entry to kitchen area from dining room and /study room, other areas throughout epoxy floor coating throughout residence.

Complaint Item 7: Air bubbles throughout epoxy

Air bubble (gassing) in the epoxy floor coating in the master bathroom area, and areas throughout epoxy floor coating throughout residence.

Complaint Item 8: uneven top coat

Uneven application of top coat not on epoxy floor coating throughout the residence.

Complaint Item 10: over spray on outside of house

Epoxy coating overspray on exterior stucco surfaces in the patio area as well as on all patio columns.

Complaint Item 11: over spray on windows

Epoxy coating overspray surfaces of windows, and arcadia (patio door).

Addendums, respondent not present to object.

Complaint Item 12: Contractor damaged stucco surfaces when power washing.

Power washing burns on surfaces of stucco in several areas.

Complaint Item 13: Contractor dumped epoxy in soil on and around telephone pole on east side of driveway.

Epoxy in soil on and around telephone pole based on east side of driveway.

13. On January 3, 2020, Investigator Cruz conducted a pre-hearing inspection. Investigator Cruz found that Southwest Coating had not repaired complaint items 3 through 8, and 11.

13. Investigator Cruz found that Respondent appropriately corrected complaint item 1, but observed that Mr. Brady hired another contractor repair the cabinet toe/kicks other than those situated to the left of the kitchen sink. See Exhibit A.

14. With regard to Complaint Item 2, Investigator Cruz found that the “majority of doors, door jambs, casing trim and cabinet toe kicks” were corrected by a contractor that was not Southwest Coating. See Exhibit A. Investigator Cruz was unable to substantiate Mr. Brady’s allegation that Southwest Coating damaged the laundry room appliances because he could not determine whether the damage was preexisting. However, Investigator Cruz found that Southwest Coating had not complied with complaint item 2 due to the epoxy residue present on some of the bases of columns in the front entry area, epoxy residue on hall wall and baseboard, and epoxy residue on the entrance to the kitchen, study, and powder room bathroom toilet. See id.

15. Investigator Cruz found that Mr. Brady hired another contractor to correct complaint item 10. See Exhibit A.

16. Investigator Cruz found that Southwest Coating appropriately corrected complaint items 12 and 13. See Exhibit A.

17. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

18. At hearing, Scott J. Brady testified on behalf of himself. Mr. Brady presented the testimony of Korah A. Hart.

19. Southwest Coating presented the testimony of Mary Scott and Joshua Scott. Investigator Cruz testified regarding his job site inspections and issuance of the Directive.

20. Mr. Brady and Ms. Hart testified that Southwest Coating performed poor work when it repaired Mr. Brady’s home.

21. Ms. Scott and Mr. Scott denied that the work of Southwest Coating failed to meet minimum workmanship standards. Ms. Scott and Mr. Scott denied that Southwest Coating failed to comply with the Directive. Mr. Scott stated that the metallic floor will reflect what appears to be gas bubbles because metallic floors move. Mr. Scott also contended that the cracks in the floor were caused by moisture in the floor. However, Southwest Coating provided no evidence that cracks in Mr. Brady’s floor wee caused by moisture in the floor. Mr. Scott stated that the contract between Mr. Brady and Southwest Coating states that Southwest Coating is no responsible for moisture in the floor. However, Mr. Scott and Ms. Scott failed to provide written evidence that it warned Mr. Brady about the possible appearance of gas bubbles in the metallic floors and obtained a written waiver.

22. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on February 11, 2020, Southwest Coating’s license was first issued on February 12, 2018 and is active. Such prior License record also shows that there is only one open complaint against Southwest Coating. Southwest Coating’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960)

3. The preponderance of the evidence does not show that Respondent damaged Complainant’s laundry room appliances.

4. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike as alleged in complaint items 3 through 8, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108. . If Respondent could repair Mr. Brady’s home without complying with the Registrar’s workmanship standards, it should not have undertaken the job without a written waiver signed by Mr. Brady. Respondent did not obtain such a warranty disclaimer in this case.

5. The preponderance of the evidence shows that Respondent appropriately corrected the complaint items 11, and 13. The preponderance of the evidence shows that Respondent and different contractor hired by Complainant appropriately corrected complain item 1. The preponderance of the evidence shows that Complainant hired a contractor other than Southwest Coating to repair complaint item 10. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent’s work failed to meet minimum workmanship standards as alleged in complaint items 1, 11, 10, and 13.

6. The preponderance of the evidence shows that Respondent failed to

Correct complaint 3 through 8 items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

7. The preponderance of the evidence shows that Respondent failed to appropriately correct the epoxy residue present on the bases of columns in the front entry area, the hall an baseboard, the entrance to the kitchen and study, and the powdered room bathroom toilet, as alleged in complain item 2, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

8. The preponderance of the evidence shows that Complainant hired a contractor other than Southwest Coating to repair epoxy residue on the doors, door jambs, casing trim, and cabinet toe kicks. As a result, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent’s work failed to meet minimum workmanship standards with regard to the epoxy residue on the doors, door jambs, casing trim, and cabinet toe kicks as alleged in complaint item 2.

9. The preponderance of the evidence shows that Southwest Coating violated

Ariz. Rev. Stat. section 32-1158(B) by failing to provide Mr. Brady with a written contract which advised him of his right to file a complaint with the Registrar against Floor Store for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s license No. ROC 317816 for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of Ariz. Rev. Stat. § 32-1158(B). If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s license be suspended for three days.

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. sections 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, February 11, 2020.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors