ALJDEC decisions subject to certification as final

2019A-01618-CHC-ROC · Registrar of Contractors · 2019-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2019 APPEARANCES: Jason Ewing, appeared on behalf of Complainant Ewing Custom Homes LLC. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT Coach Pat’s Painting, LLC (Respondent) is the holder of License No. 314647 issued by the Arizona Registrar of Contractors (ROC). On August 8, 2018, Jason Ewing (Mr. Ewing), owner of Ewing Customs Homes, LLC (Complainant), entered into a verbal contract with Respondent to paint a residential home. The parties did not execute a written contract. On or about April 2, 2019, the Registrar received a Complaint against Respondent, from Complainant, alleging that Respondent abandoned the job and filed for bankruptcy. The Registrar assigned the complaint to Investigator Beau Cruz (Investigator Cruz). After a jobsite inspection, Investigator Cruz issued a written Directive From the Registrar (Directive) to Respondent 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). 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 May 20, 2019. You are hereby directed to remedy the following violations by the appropriate means: Respondent shall complete project per original contract agreement, properly executed change orders and/or verbal agreements. Complaint Item 3: Work was never done/completed Respondent failed to finish project by applying to finish (to be determined) of paint. Respondent is to complete painting the exterior of structure.

All errors in original.

Following the issuance of the Directive, Respondent emailed Investigator Cruz and admitted that it did not complete the project due to multiple hardships. After the deadline in the directive expired, Complainant notified Investigator Cruz that Respondent did not contact Complainant nor comply with the Directive. The Registrar issued a Citation against Respondent, charging possible violation of A.R.S. §§ 32-1154(A)(1); §§ 32-1154(A)(3); §§ 32-1154(A)(12); and §§ 32-1154(A)(22). 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 at 8:30 a.m. on May 30, 2019. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Investigator Cruz testified about his observations, during the jobsite inspection, which took place on May 3, 2019. Investigator Cruz stated that Respondent was not present during the inspection. Investigator Cruz testified that he observed that the house was primed but not painted. Investigator Cruz testified that, on May 6, 2019, he issued a Directive with a May 20, 2019 compliance deadline. Investigator Cruz stated that Respondent did not timely comply with the Directive. Investigator Cruz stated that the ROC issued a Citation on May 29, 2019 for abandonment, poor workmanship, and failure to comply with the Directive. Investigator Cruz testified that the ROC never received an answer from Respondent. Investigator Cruz stated that he later learned Respondent filed for bankruptcy. Investigator Cruz did not have any information regarding Respondent’s bankruptcy case. At hearing, Mr. Ewing testified that he paid Respondent $14,330.00 to complete a paint project. He opined that Respondent completed about $5,000.00 worth of work and abandoned the project. Mr. Ewing stated that Respondent prepped the outside of the house and primed and painted two rooms inside of the house. Mr. Ewing stated that Respondent had poor workmanship when he over sprayed and left some of the doors half done. Mr. Ewing testified that Respondent informed Mr. Ewing that he was unable to complete the work due to hardship. Mr. Ewing stated that Respondent told him that he had multiple deaths in the family and that he filed for bankruptcy. Mr. Ewing stated that Respondent told him that he had no money to finish the project. Mr. Ewing stated that he tried to negotiate financial terms but Respondent did not respond to his attempts. Complainant hired another painter who began to finish the job, but is still trying to find the funds to complete the job. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Administrative notice is taken of Respondent’s prior License record on August 29, 2019. Such prior License record reflects that Respondent’s License No. 314647 was first issued on June 28, 2017, and is suspended. The license has not been previously disciplined by the ROC. The record also reflects that there is one open complaint against Respondent’s license, presumed to be related to this matter. CONCLUSIONS OF LAW 1. This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Respondent’s suspended license does not deprive Complainant of his/her right to prosecute the complaint or prevent the ROC from determining the merits of the complaint. See A.R.S. § 32-1154(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violations 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). 4. The evidence clearly established that Respondent abandoned the project after receiving payment of $14,330.00. Therefore, Complainant proved, by a preponderance of the evidence, that Respondent abandoned the project in violation of A.R.S. §§ 32-1154(A)(1). 5. The evidence is undisputed that Respondent’s partial prime and painting, in the inside of the house, resulted in poor workmanship in a violation of A.R.S. §§ 32-1154(A)(3); namely A.A.C. 4-9-108. 6. The evidence is undisputed that Respondent’s failure to adhere to the elements of the contact resulted in a violation of A.R.S. §§ 32- 1154(A)(12); namely A.R.S. section 32-1158(A). 7. Furthermore, Complainant established that Respondent failed to take appropriate corrective action following a written Directive from the Registrar in violation of A.R.S. §§ 32-1154(A)(22). 8. The copy of the Notice of Hearing that the ROC mailed to Respondent Complainant at its address of record and was reasonable and Respondent is deemed to have received notice of the hearing. See A.R.S. §§ 41- 1092.04 and 41-1092.05(D). 9. Complainant may petition the ROC’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties. 10. Respondent’s suspended license does not deprive Complainant of his/her right to prosecute the complaint or prevent the ROC from determining the merits of the complaint. See A.R.S. § 32-1154(D). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the ROC shall revoke Respondent’s License No. 314647. It is further recommended that the ROC require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). 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 ROC’s final order, the ROC will 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, September 1, 2019.

/s/ Antara Nath Rivera 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