ALJDEC decisions subject to certification as final

2019A-03588-CHC-ROC · Registrar of Contractors · 2019-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 2019 APPEARANCES: Fred Paoli for Complainant; no one appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On October 3, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. November 4, 2019 at the Office of Administrative Hearing. 2. The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation, which were served on Respondent DJB Painting LLC on August 29, 2019. 3. No representative for Respondent appeared at the scheduled time and the matter was convened in its absence at about 1:17 p.m. 4. Respondent holds license No. 229946 issued by ROC, which is a Specialty Dual CR-34 Painting and Wall Covering license. David Ray Brown is Respondent’s qualifying party and a member of the LLC. 5. ROC’s website shows that as of May 22, 2019 Respondent’s license was suspended for non-renewal. 6. Respondent entered in to a contract or contracts with Complainants Fred and Anita Paoli to perform work a house in Patagonia Arizona. The record shows that Pine Creek Lodge LLC issued three checks totaling $151,329 to Respondent.[1] 7. Mr. and Ms. Paoli intend to use the house as a winter home and rent it out the rest of the year. 8. Much of the work Respondent agreed to complete is beyond the scope of a Specialty Dual CR-34 Painting and Wall Covering license. Complainants’ Exhibit 3 is an invoice for the work Respondent agreed to perform. 9. Mr. Paoli testified that after Ms. Paoli provided Respondent with the third of three checks in February 2019, Respondent did little or no additional work, and by April or May 2019, Respondent was no longer communicating with Mr. and Ms. Paoli.

10. On July 16, 2019, Complaints filed with ROC a complaint against Respondent alleging abandonment. 11. ROC investigator Mike Springer conducted a jobsite inspection on August 8, 2019. 12. On August 8, 2019, ROC issued to Respondent an Amended Directive that required Respondent to remedy by appropriate means: Complaint Item 1: Shower door not installed/steamer not installed. (Both Bathrooms) Complaint Item 2: Front door not installed (Pella Slider) Complaint Item 3: Sliding door to kitchen not installed. Complaint Item 4: Pella windows in front entry not installed. Complaint Item 5: Fireplace not installed (Note: I told him to delete but he billed me anyway) Complaint Item 6: Folding table in laundry room not installed. Complaint Item 7: New water heater (On demand) not working. Complaint Item 8: Dog wash station not insulated to outdoors. Complaint Item 11: Mini split for Heat/AC in lower half of house not installed.

13. At the hearing, Mr. Springer testified to the effect that the items listed in the Directive as requiring correction are were items that did not meet the workmanship standards. 14. The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. and Ms. Paoli’s complaint were unsubstantiated. 15. 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. August 27, 2019. 16. Respondent did not complete the work ROC ordered it to complete by the deadline imposed by ROC. 17. ROC issued to Respondent a citation dated August 29, 2019 in which it alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16) and (A)(22). 18. As of the hearing date, Respondent had not complied with ROC’s Directive. 19. Mr. Paoli had entered into evidence estimates showing a cost to complete of $33,563.23, which he testified did not include additional costs of about $5000. 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.

***** 16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

***** 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(A) provides that “A contractor shall perform all work in a professional and workmanlike manner. ” 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. The term “knowingly” requires “[o]nly a knowledge that the facts exist that bring the act or omission within the provisions of the statute using such a word” and “[d]oes not require any knowledge of the unlawfulness of the act or omission.” Ariz. Rev. Stat. § 1-215(17). 13. The preponderance of the evidence shows that as set out in ROC’s Directive, Respondent’s work did not meet the workmanship standards. This is a violation of Ariz. Admin. Code section R4-9- 108 and Ariz. Rev. Stat. section 32-1154(A)(3). 14. The preponderance of the evidence shows that Respondent knowingly contracted beyond the scope of its license, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(16). 15. The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive within the time ordered without a justification for that failure, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22). 16. Because Respondent has violated Ariz. Rev. Stat. sections 32- 1154(A)(3), (A)(16) and (A)(22), ROC has authority to discipline its license. 17. In this case there are no mitigating factors. 18. Factors in aggravation include the nature and amount of Respondent’s work that is not within the scope of its license and that Respondent has made no attempt to comply with ROC’s Directive. 19. Considering the above, Respondent’s license should be revoked and Respondent should be ordered to pay to ROC a civil penalty of $500.00. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final Order in this matter, DJB Painting LLC’s license number 229946 be revoked; IT IS FURTHER RECOMMENDED that the Registrar of Contractors require DJB Painting LLC to pay $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E). 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, November 22, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Mr. Paoli signed one, and presumably his wife the other two, but those signatures are illegible.

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