ALJDEC decisions subject to certification as final

2019A-00581-CHC-ROC · Registrar of Contractors · 2019-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2019 APPEARANCES: Larry E. Ostrom, Complainant; Dane J. Nealon, Respondent and Qualifying Party, Greg Johndrow, ROC Investigator ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson, Esq. _____________________________________________________________________ FINDINGS OF FACT Respondent, Tidy & Swift, LLC, is the holder of ROC License: ROC 318806 [hereinafter, [“TS”] issued by the Arizona Registrar of Contractors (Registrar).[1] On or about November 15, 2018, Larry E. Ostrom, Complainant [hereinafter, “Ostrom”] entered into a contract with TS to, among other things, prepare and paint the interior of Ostrom’s residence.[2] On February 4, 2019, Ostrom filed a Written Complaint with Registrar.[3] The written complaint charged TS with the commission of an act or acts that would, if proved, be cause for the suspension or revocation of TS’s license under A.R.S. § 32-1154 and the rules adopted by the Registrar.[4] The Registrar assigned the complaint to ROC Investigator Greg Johndrow who, after written notice to the parties, conducted a Formal Jobsite Inspection [hereinafter, the “JSI] on February 28, 2019. The Respondent did not appear for or otherwise participate in the JSI. Mr. Johndrow’s JSI notes provide his formal JSI observations.[5] On or about March 1, 2019, following the JSI, Investigator Johndrow issued a Written Directive [hereinafter the “Directive”] to TS that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108)… You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on March 18, 2019. [emphasis in the original].

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

Complaint Item 1: "Kitchen cabinets - Paint peeling, didn't caulk, missed areas, bad prep" Complaint Item 2: "Door moldings, Didn't paint sides or tops" Complaint Item 3: "Back door - Didn't finish painting, it’s a mess" Complaint Item 4: "Touch ups - used wrong paint sheen" Complaint Item 5: "Not all switch plates or outlet plates were removed" (Complainant's description of paint on the electrical switch and outlet cover plates) Complaint Item 6: "Every soffit has missed areas or missed completely" Complaint Item 7: "Kitchen cabinets were to be sprayed, not brushed or rolled" Complaint Item 8: "Kitchen window - Paint on blind, didn't remove and missed areas" Complaint Item 9: "Master bath, hasn't been painted. waiting on dry rot repair" Complaint Item 10: "Not all walls got 2 coats of paint" (Complainant's description of inadequate paint coverage and bleed through of the previous color) Complaint Item 11: "Every room and hallway has paint issues" Complaint Item 13: "Security screen door, made a mess and left 1/2 done"

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 Directive, TS did not correct the items on or before the Directive’s stated deadline of 5:00 p.m. on March 18, 2019 as ordered in the Directive.[6] The Registrar issued a Citation[7] on March 21, 2019, against TS, charging possible violations of the following: Charge:1 A.R.S. § 32-1154(A)(1);[8] Charge:2 A.R.S. § 32-1154(A)(2);[9] Charge :3 A.R.S. § 32-1154(A)(3) - R4- 9-108;[10] and Charge: 4 A.R.S. § 32-1154(A)(22).[11] A hearing was held on June 11, 2019. At the hearing, Investigator Johndrow testified consistent with his JSI notes and the Directive that he issued to TS. Testifying for Respondent TS was Dane J. Nealon, TS’s Qualifying Party. On the record in the proceedings, Mr. Nealon testified and stipulated that each of the items listed in the Directive were correctly identified by Mr. Johndrow as work performed below workmanship standards. Further, Mr. Nealon stipulated that TS departed from or disregarded the plans or specifications of the Ostrom contract in a material respect by abandoning this project which, he agreed, was prejudicial to Ostrom and without Ostrom’s consent. Moreover, Mr. Nealon testified that he did not comply with the Directive before the March 18, 2019 date of compliance. Mr. Nealon further testified that he agrees and stipulates that TS violated each of the four separate charges listed in the Citation. Administrative notice is taken of TS’s prior License record as reflected on the Registrar’s public website on June 29, 2019. Such prior License record reflects that TS’s License No. 318806 was first issued on March 16, 2016. The Registrar’s public access website notes that on April 29, 2019, TS voluntarily cancelled its contractors Arizona license. No disciplinary action against TS is noted of record and no other prior or pending Complaints have been filed. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. Complainant bears the burden of proof to establish TS’s statutory violation by a preponderance of the evidence. See A.R.S. § 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). The credible evidence presented at hearing established that at the time of the complaint there were items of Complainant’s project that needed to be completed. Specifically, complete the contracted interior painting of Ostrom’s residence and repair the items listed in the Directive. At hearing, Mr. Nealon did not dispute that work on this job stopped on December 26, 2018 and that TS never returned to the jobsite. Mr. Nealon stipulated and agreed on the record that that each of the items listed in the Directive’s corrective work order were true; that TS’s work as listed in the Directive was all below workmanship standards; and, that Respondent did not comply with any of the Directive on or before the Directive’s stated deadline for compliance. Further, Mr. Nealon stipulated and agreed that TS did violate each of the Citation’s listed four charges, including but not limited to the allegation that TS abandoned the Ostrom project without legal excuse for the abandonment or refusal. Therefore, Complainant has proven by a preponderance of the evidence that TS abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32- 1154(A)(1).[12] Mr. Nealon stipulated that TS departed from or disregarded the plans or specifications of the Ostrom contract in a material respect by abandoning this project which, he agreed, was prejudicial to Ostrom and without Ostrom’s consent. Thus, Complainant has established by a preponderance of the evidence that TS violated A.R.S. § 32-1154(A)(2). As to the issue of poor workmanship, TS has stipulated upon the record that all of the Directive’s findings that TS’s work on this project was below workmanship standards were true and accurate. Therefore, Complainant has established that TS did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby violated A.R.S. § 32-1154(A) (3).[13] Mr. Nealon stipulated that TS failed to comply with the Directive’s corrective work order before the expiration of the Directive’s March 18, 2019 date of compliance. Thus, Complainant has established that TS violated A.R.S. § 32-1154(A)(22).[14] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Tidy & Swift, LLC’s ROC License number 318806. 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 will be 40 days from the date of that certification.

Done this day, June 29, 2019.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website. [2] See, Agency Record, pages 40 through 43. [3] Agency Record, pages 147 and 148. The Complaint against TS from Complainant alleges TS performed poor and substandard work and abandonment. [4] See A.R.S. § 32-1154(A)(3) (identifying as cause for the suspension or revocation of a license the “[v]iolation of any rule adopted by the registrar”). [5] Agency Record, pages 34-38. [6] At hearing in this matter, the Respondent’s qualifying party stipulated - on the record – that each of the items listed in the Directive corrective work order were true, were all below workmanship standards and that Respondent did not comply with any of the Directive on or before the Directive’s stated deadline for compliance. [7] Agency Record, pages 16 through 21. [8] Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [9] Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [10] - Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108. [11] 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….. [12] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [13] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [14] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826