ALJDEC decisions subject to certification as final

2019A-03367-CHC-ROC · Registrar of Contractors · 2020-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Samir Labbad,

COMPLAINANT

Shift Painting LLC,

License No. ROC 301083,

RESPONDENT

No. 2019A-03367-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 26 and 31, 2020

APPEARANCES: Samir Labbad on his own behalf; James Bailey for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 16, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on February 18, 2020 at the Office of Administrative Hearing.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent Shift Painting LLC on December 6, 2019.

Respondent holds license No. 301083 issued by ROC. James Bailey is Respondent’s qualifying party.

Complainant is Samir Labbad.

The matter was continued and the hearing was convened on March 26, 2020, but Complainant was unable to access Respondent’s exhibits and the parties agreed to again continue the matter. The hearing was reconvened on March 31, 2020.

In December 2017, Mr. Labbad hired Respondent to paint a house he owns in Glendale. Mr. Labbad lives in California. Respondent completed the work in January 2018.

On July 1, 2019, Mr. Labbad filed with ROC a complaint against Respondent alleging poor work on Respondent’s part. On August 22, 2019, Mr. Labbad filed with ROC a second complaint against Respondent in which he also alleged poor work on Respondent’s part.

ROC investigator Chris Fultz conducted a jobsite inspection on September 25, 2019.

Respondent did not attend the inspection because the notice ROC sent to him was returned to ROC.

Mr. Fultz testified to the effect that at the time of the inspection he was not aware that Mr. Labbad had filed two complaints, but Mr. Labbad (and his brother Georges Labbad who was also present) pointed out issues that Mr. Labbad had raised in the second complaint.

Mr. Fultz prepared a written Directive dated September 30, 2019, that provided in part:

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: The paint job and surface rep. poorly done and not performed correctly.

Investigator’s Observation: I did note that on the northeast side of the home in front of the back wall by the electrical service box, there was unusual pealing of the paint from poor prep of the area.

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: Scraping of old paint where needed

Investigator’s Observation: This is covered in item 1 of the report notes.

Complaint Item 3: Filling cracks and seems

Investigator’s Observation: The cracks and seems I noted were not from poor workmanship in the painting of the home, but sun dried wood that appears to be needing repair or replacement.

Complaint Item 4: Front house and garage beams filling becoming loose and falling.

Investigator’s Observation: The cracks and seems I noted were not from poor workmanship in the painting of the home, but sun dried wood that appears to be needing repair or replacement.

Complaint Item 5: Paint of all eves is bad, cracks showing and very obvious.

Investigator’s Observation: The cracks and seems I noted were not from poor workmanship in the painting of the home, but sun dried wood that appears to be needing repair or replacement.

Complaint Item 6: Facias and beams front where the new paint did not cover enough the old color still shown.

Investigator’s Observation: I was unable to see where old paint was showing through.

Complaint Item 7: Bricks at front window not painted all.

Investigator’s Observation: Looking at the bricks, they appeared to be painting and matching the rest of the exterior color.

Complaint Item 8: The worst is the exterior walls panels. It shows lots of missed spots “holidays” not enough paint.

Investigator’s Observation: I was unable to see where old paint was showing through.

Subsequently, Mr. Fultz learned that Mr. Labbad had filed a second complaint, but he did not find it necessary to return to the site because he had photographs taken during the inspection on September 25th and because Messrs. Samir and Georges Labbad had pointed out the issues raised in the second complaint during that inspection.

On October 23, 2019, ROC issued to Respondent an Amended Directive that provides in part:

AMENDED DIRECTIVE REQUIREMENTS

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

Amended Complaint Item 1: Contractor didn’t match under eve’s color. Paint shows shady and spotty.

Investigators Observation: I noted one spot on the east side over hang that appeared to be a lighter color. Overall the paint matched within standards. The one location did see appeared to be of a much lighter color.

Governing rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional

industry standards.

Amended Complaint Item 2: Cracks in many rafters aren’t filled up.

Investigators Observation: Initially the complaint was for the beams on the front house and garage.

Those looked good at the time of the inspection. I noted a rafter on the east side that was bad and needed to be replaced. Upon looking back at the contract, it states that “Use elastomeric patching compound in major cracks”. I don’t know if the homeowner approved the replacement of that rafter, but at a minimum, that crack should have been filled as a major crack.

Governing rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Amended Complaint Item 3: Sloppy work didn’t use cover up. Paint all over screen shade need to be replaced.

Investigators Observation: There was overspray noted on the back porch south side facing screen shade.

This should be repaired by appropriate means.

Governing rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Amended Complaint Item 4: Paint drop from under eve color on walls, and on textured floor of patio.

Investigators Observation: I did note that there were drops of paint in various locations

Governing rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

The Amended Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. November 11, 2019.

After Respondent received the Amended Directive, it made many attempts to contact Mr. Labbad to schedule the repairs ROC ordered it to complete, but Mr. Labbad did not respond to the Respondent.

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

Mr. Fultz testified that there were communication issues between the parties and to the effect that Mr. Labbad had denied Respondent access to make the repairs ROC ordered it to complete because Mr. Labbad did not respond when Respondent contacted him to schedule those repairs.

At the hearing, Mr. Fultz acknowledged that Mr. Labbad did not include a complete copy of the parties’ contract with the complaints he filed with ROC.

Section 2 of the contract covers “Surface Preparation.”

Section 2.3 of the contract, “Caulk / Elastomeric Patch Major Cracks” includes the following limitation: “Cracks in wood, expansion joints, seams, and in areas where different substrates meet are limited to the replacement of failing caulk unless otherwise noted.”

Section 3 of the contract covers “General Terms & Conditions.”

Section 3.2 of the contract, “Guarantee:” excludes from coverage “rotten wood” and “deteriorating ... wood.”

Section 3.3 of the contract, “Exclusions” includes the following limitation: “Caulking is limited only to the replacement of failed caulk. Areas never caulked will not be caulked unless otherwise specified.”

Mr. Bailey testified to the effect that the house is forty years old, and much of the wood was very dry and in poor condition with cracks. This testimony is consistent with Mr. Fultz’s observations of the house as set out in the two Directives issued by ROC.

Mr. Bailey testified as to Respondent’s efforts to make Mr. Labbad happy, including repainting the house. A standard paint jobs call for 2 mils of thickness; in this case Respondent applied an original coat of paint at two mils and then two coats of elastomeric paint at three to four mils each.

Although lack of communication has been a problem, Respondent stands by its work and is willing to take care of any issues that require correction.

On March 20, 2020, Mr. Bailey went to the house and spoke to the tenant. He did not see the drips on the concrete or the overspray on the sunscreen, but Respondent is willing to pay the reported cost of $175 to replace the sunscreen. Mr. Bailey also did not any cracks that would be covered by the contract (i.e., cracks that are not excluded from Respondent’s scope of work by the terms of the contract).

For his part, Mr. Labbad testified that Respondent had been given opportunities to make any required repairs, but its attempts to do so had been unsuccessful. These efforts included work Respondent performed between the times that Mr. Labbad filed with ROC his first and second complaints.

While the matter was pending at ROC, Respondent agreed to conduct work that arguably would have been excluded under the terms of the original contract.

ROC issued to Respondent a Citation dated December 6, 2019, through which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

CONCLUSIONS OF LAW

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.

“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).

“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).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

There was no substantial evidence adduced to show that Respondent is unscrupulous, unqualified, or financially irresponsible.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

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:

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3. Violation of any rule adopted by the registrar.

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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.

Ariz. Admin. Code section R49108 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.”

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).

Mr. Fultz observed several possible workmanship violations including an area in which the paint was peeling, an area under the eaves that was a lighter color than other areas, a crack that he believed should have been filled, and paint drips and overspray. Of these, the preponderance of the evidence shows that the peeling paint, the paint drips, and the overspray are workmanship violations.

There is insufficient evidence to show that the area under the eaves was deficient and a violation of the workmanship standards. As to the crack, it has not been shown that this was a workmanship violation because the contract excludes from Respondent’s work patching of some cracks.

It has not been shown by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) because Mr. Labbad did not respond to Respondent’s attempts to gain access to make any required repairs, which provides a valid justification for Respondent’s failure to comply with ROC’s Directives.

Because Respondent has violated Ariz. Rev. Stat. sections 32-1154(A)(3), ROC has authority to discipline its license. In this case, the deficiencies are minor, Respondent was not provided access to make any repairs, and Respondent offered to pay to replace the sunscreen. Consequently, Respondent’s license should not be disciplined and this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2019-03367 is dismissed.

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.

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-137160-45720000Done this day, April 17, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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