FINACT2019A-00853-ROC.pdf

2019A-00853-CHC-ROC · Registrar of Contractors · 2019-09-18

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Henri Prins, Case No. 2019-00853

COMPLAINANT, Docket No. 2019A-00853-CHC-ROC

v. FINAL ADMINISTRATIVE DECISION AND ORDER Arizona Valley Home Builders LLC, License No. ROC 302555, RESPONDENT.

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 of each finding of

fact or conclusion of law.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it.

CONCLUSION AND ORDER

Because the Registrar has accepted the Administrative Law Judge Decision, that decision is the final

administrative decision and becomes effective on October 28, 2019.

IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable to

the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the

Registrar’s physical address or mailed to:

Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 ///

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of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 FINAL NOTE On page one, paragraph six, line 26, “15” should be replaced with “21.” On page three, paragraph 14, line nine, “Respondent” should be replaced with “Respondent’s Attorney.” On page three, paragraph 14, line 14, “sanding” should be replaced with “stripping, re-priming.” On page seven, line one, replace “the date of the final ORDER” with “30 days from the effective date of the final order.” Dated September 18, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class Mail September 18, 2019 to: Respondent Arizona Valley Home Builders LLC 515 E Carefree Hwy # 722 Phoenix, AZ 85085

Respondent’s Attorney Robert D. Corl, Esq. Corl Law Practice PLLC 20987 N John Wayne Pkwy B104-172 Maricopa, AZ 85139

Complainant Henri Prins 8924 E Pinnacle Peak Rd Ste G5 Scottsdale, AZ 85255 Copy sent electronically this same date to:

Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar

Case No. 2019-00853 / KR

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 9.6.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Henri Prins, No. 2019A-00853-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Arizona Valley Home Builders LLC, DECISION License No. ROC 302555 RESPONDENT

HEARING: August 23, 2019 APPEARANCES: Henri Prins on his own behalf; Robert Corl, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

1. On June 24, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on August 12, 2019 at the

Office of Administrative Hearing. The matter was continued and the hearing was conducted on August 23, 2019. 2. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and complaint. 3. Respondent Arizona Valley Home Builders LLC holds license No. 302555 issued by ROC. Bob Michael Ellis is a member of the LLC. 4. Complainant Henri Prins appeared and testified on his own behalf and also called ROC investigator David Fagerburg to testify. Mr. Ellis testified and Respondent also presented the testimony of Tony Klimas. 5. Respondent and Mr. Prins entered a contract in which Respondent agreed to install and paint a fence at Mr. Prins’ house. 6. On or about February 15, 2019, Mr. Prins filed with ROC a complaint against Respondent alleging that Respondent had abandoned the project. 7. ROC investigator David Fagerburg conducted a jobsite inspection on March 25, 2019.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 9.6.2019 ROC LEGAL

8. Through an email to Mr. Fagerburg dated April 1, 2019, Mr. Prins amended his complaint to add an allegation that Respondent was responsible for paint overspray on various surfaces at his home.

9. On April 11, 2019, ROC issued to Respondent a DIRECTIVE that provides

in part: You are hereby directed to remedy the following violations by the appropriate means: means: Complaint Item 1: Arizona Fence Builders improperly installed and painted the fence they sold me and refuse to correct. Paint does not adhere properly to fence. Complaint Item 2: Missing screws that hold fence panels together. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

10. The DIRECTIVE required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. April 30, 2019. Respondent did not complete the work ROC ordered it to complete by the deadline imposed by ROC. 11. On May 2, 2019, ROC issued to Respondent a DIRECTIVE that provides in part: You are hereby directed to remedy the following violations by the appropriate means: means: Complaint Item 1: Arizona Fence Builders improperly installed and painted the fence they sold me and refuse to correct. Paint does not adhere properly to fence. Complaint Item 2: Missing screws that hold fence panels together. Addendum Item 1: Remove paint overspray on exterior doors, windows and frames, outdoor lighting fixtures, gates, BBQ and island fixtures. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. RECEIVED 9.6.2019 ROC LEGAL

12. The May 2nd DIRECTIVE required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. May 20, 2019.

Respondent did not complete the work ROC ordered it to complete by the deadline

imposed by ROC.

13. ROC issued to Respondent a CITATION dated May 28, 2019. Through that

CITATION ROC alleges that Respondent may have violated ARIZ. REV. STAT. sections

32-1154(A)(3) and (A)(22).

14. Respondent filed an answer to the CITATION in which it acknowledged that

paint has not properly adhered to the fence, but it took the position that this was the

result of defective primer used by the manufacturer of the fence. Respondent therefore

denied committing a workmanship violation and asserted that the manufacturer, not

Respondent, should be made to account for the defect. Respondent also provided that

it had attempted to correct the defect by sanding and then repainting the fence, but this

was not successful.

15. Mr. Ellis testified that he learned that paint was not sticking to the fence

from one of his salesmen. He knew that typically paint will not adhere if the underlayment is not correct. In this case, he learned that the manufacturer had produced fences with bad primer. 16. Mr. Fagerburg was of the opinion that the fence had been treated with a powder coating, not primer, before it was painted. Paint does not adhere well to powder coating. 17. Respondent’s witness Mr. Klimas has thirty years of experience as a painter and assessed the fence on three occasions. Mr. Klimas’s opinion was that the undercoating was not primer, but rather was a hard, shiny finish-coat that was not suitable for painting and would require sanding or scuffing before paint would adhere. 18. Mr. Ellis disagreed with Messrs. Fagerburg and Klimas and was of the opinion that the undercoat was an electrostatic primer.

RECEIVED 9.6.2019 ROC LEGAL

19. Consistent with its answer, at the hearing Respondent took the position that it was not responsible for the failure of paint to adhere to the fence, and that Mr. Prins should seek redress from the manufacturer.

20. ROC’s Substantive Policy Statement 2017.01 shows that a contractor who

performs work on a surface prepared by another, is responsible for any deficiencies

accruing from defects in that surface.

CONCLUSIONS OF LAW

1. 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.

2. “At a hearing on an agency action to suspend, revoke, terminate or

modify on its own initiative material conditions of a license or permit, the agency has

the burden of persuasion.” ARIZ. REV. STAT. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41- 1092.07(G)(3). 4. 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). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). RECEIVED 9.6.2019 ROC LEGAL

7. 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).

8. The Administrative Law Judge may consider ROC’s administrative record.

See ARIZ. ADMIN. CODE § R4-9-118.

9. ARIZ. REV. STAT. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 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.

10. ARIZ. ADMIN. CODE section R4-9-108 provides that “A contractor shall perform all work in a professional and workmanlike manner[,] ” and that “a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.” 11. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22). 12. Substantive policy statements inform the public of an agency’s opinion regarding the applicable statutes or rules, but are not binding and are advisory only. ARIZ. REV. STAT. § 41-1001(22). RECEIVED 9.6.2019 ROC LEGAL

13. The preponderance of the evidence shows that Respondent applied paint to a fence that was not properly prepared to accept that paint. The preponderance of the evidence also shows that the surface of the fence was such that a contractor of

ordinary skill would have been aware prior to applying the paint that the surface was

not suitable to paint. Consequently, the preponderance of the evidence shows that

Respondent violated ARIZ. ADMIN. CODE section R4-9-108, which is a violation of ARIZ.

REV. STAT. section 32-1154(A)(3).

14. Respondent’s argument that the manufacturer bears responsibility is not

unreasonable, but it is Respondent, not Mr. Prins who should be required to seek

redress from that manufacturer. Whether Respondent can obtain such redress does not

excuse its action in painting over a surface that was not properly prepared for paint,

and Respondent was responsible to ensure that Mr. Prins received the benefit of the

contract he entered with Respondent.

15. The preponderance of the evidence shows that Respondent also violated

subsection R4-9-108(A) by failing to install all required screws for the fence and

because there is overspray on various surfaces at Mr. Prins’ home.

16. The preponderance of the evidence shows that Respondent violated ARIZ. REV. STAT. section 32-1154(A)(22) because it failed to comply with ROC’s DIRECTIVE without a valid justification. 17. Because Respondent has violated ARIZ. REV. STAT. sections 32- 1154(A)(3) and (A)(22), ROC has authority to discipline its license. 18. Considering the facts and circumstances of this matter, Respondent’s license should be suspended for two days and Respondent should be ordered to pay to ROC a civil penalty of $250. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final ORDER in this matter, Respondent Arizona Valley Home Builders LLC’s license No. 302555 be suspended for two days;

RECEIVED 9.6.2019 ROC LEGAL

IT IS FURTHER RECOMMENDED that on or before the date of the final ORDER

in this matter, Respondent Arizona Valley Home Builders LLC be required to pay to the

Registrar of Contractors a civil penalty of $250.00.

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.

Done this day, September 5, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors