ALJDEC decisions subject to certification as final

2019A-00853-CHC-ROC · Registrar of Contractors · 2019-09-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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. 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.

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. 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). 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). 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; 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

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