ALJDEC decisions subject to certification as final

2019A-05259-CHC-ROC · Registrar of Contractors · 2020-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ashley Faye Kindler,

COMPLAINANT,

v.

C&D Painting Inc.,

License No. 266185,

RESPONDENT.

No. 2019A-05259-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 08, 2020 at 1:00 PM & July 15, 2020 at 1:00 PM.

APPEARANCES: Ashley Faye Kindler (“Complainant”) appeared with Alberto Bernal and Jason Kindler as witnesses. Mark Bainbridge, Esq. appeared on behalf of C&D Painting Inc. (“Respondent”) with Thomas Griffin as a witness.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

According to the Registrar’s public website, on August 25, 2010, the Registrar issued License No. 266185, specialty dual CR-24 painting and wall covering contracting license to Respondent. Thomas Griffin Jr. is listed on the license as the Qualifying Party. Denis Ray Buzonik and Michele Lynn Griffin are also listed as Officers on this license. Rock Ridge Holdings LLC is listed as a Related Entity on the license as well. Respondent’s address of record on the license is 6900 E. Princess Dr. Unit 1217 Phoenix, Arizona 85054-4110.

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. ROC License No 266185 has not previously been disciplined by the Registrar. There is one open complaint against the license, which is presumed to be related to this matter. The license has a $6,750.00 surety bond issued by RLI Insurance Company effective August 20, 2014. The license had been renewed through August 31, 2020.

On or about October 18, 2019, Complainant filed a complaint against Respondent with the Registrar alleging poor workmanship of a residential cabinetry painting project. Complainant included a quote, the parties’ contract, and proof of payment.

On November 04, 2019, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on November 27, 2019, at 11:00 a.m.

On November 27, 2019, Registrar investigator Alberto Bernal (“Investigator Bernal”) inspected the work that had been done on the project to date and took 31 photographs of the project. Mr. Griffin attended on Respondent’s behalf. When he was finished, Investigator Bernal drafted Jobsite Inspection Notes.

On December 12, 2019, Investigator Bernal issued a Directive from the Registrar (“Directive”) to Respondent because he substantiated Complainant’s poor workmanship allegation. Respondent was put on notice that he had until 5:00 p.m. on January 06, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On January 14, 2020, Investigator Bernal issued a Warning Letter to Respondent to advise that portions of the work Respondent performed on Complainant’s project may have been beyond the scope of Respondent’s license in violation of Ariz. Rev. Stat. § 32-1154(A)(16).

On February 25, 2020, Investigator Bernal escalated Complaint 2019-05250 to the Registrar’s legal department with a Citation Recommendation.

On February 26, 2020, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); namely Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until March 12, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155(C).

On March 11, 2020, the Registrar received Respondent’s Answer whereby Respondent asserted that he had complied with the Registrar’s original Directive and argued that Investigator Bernal’s Compliance Jobsite Inspection finding that Respondent had not remediated substantiated compliant item #2 was incorrect. Respondent also provided the following:

“Unfortunately due to recent cancer diagnosis I was not able to respond to the complaint as promptly as desired as well as confusion on the ROC process. I was diagnosed with State 4 cancer the day after the November 27, 2019 jobsite inspection. I had surgery in November and December of 2019 and am currently going through weekly intravenous chemotherapy treatments which began in January 2020. The chemotherapy limits my work week to about 3 days a week and impacted our ability to respond promptly to the Directive. However C & D Painting did respond and placed this item as a top priority. All items remedied.”

(All errors in original.)

On March 26, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on May 08, 2020. Per the Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation A.R.S. § 32-1154(A)(3) (“Violation of any rule adopted by the registrar.)

Charge 2: A violation of A.R.S. § 32-1154(A)(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.”).

Hearing Evidence

Complainant testified on her own behalf, called Jason Kindler and Investigator Bernal as witnesses, and submitted Exhibits 4-5, 11 & 22-23 into the record. Respondent called Thomas Griffin as a witness and submitted Exhibits 1-7 into the record. The Registrar’s agency file and Notice of Hearing were also admitted into the record as their own exhibits. The substantive facts are as follows:

Complainant owns newly constructed residential property located at 20352 E. Camina Plata Queen Creek, Arizona 85142. On October 13, 2017, escrow closed on the property. On October 18, 2017, Complainant and her family took occupancy.

On November 05, 2017, the parties entered into a contractual agreement whereby Complainant agreed to pay Respondent the sum total of $9,480.00 to paint cabinetry and install decorative island posts. Specifically, Respondent was to paint Complainant’s kitchen, laundry, 2 guest bathrooms, and master bathroom cabinets, install new hardware, install posts on the kitchen island, build and install kitchen cabinetry, install crown molding, and paint the kitchen walls. Respondent provided Complainant with a 2 year warranty for his workmanship on the project.

On November 09, 2017, work on the project commenced.

Complainant issued the following payments to Respondent for the underlying project –

On November 09, 2017, Complainant issued a $2,500.00 payment to Respondent.

On December 06, 2017, Complainant issued a $1,800.00 payment to Respondent.

On December 29, 2017, Complainant issued a $1,700.00 payment to Respondent.

On January 22, 2018, Complainant issued a $2,905.00 payment to Respondent.

On February 04, 2018, Complainant issued a $575.00 payment to Respondent.

On February 04, 2018, work on the project was completed.

In or around September of 2018, approximately one and half years after Respondent completed the project, Complainant reported peeling and cracking of post and cabinetry paint, indentations, unfilled drill holes, loose handles, drawer issues, gapping, and built-in specification concerns to Respondent.

Because the parties could not resolve their underlying dispute, Complainant submitted a workmanship complaint to the Registrar.

At the November 27, 2019, jobsite inspection, Investigator Bernal substantiated 7 of 9 of Complainant’s complaint items, excluding only complaint items #1 and #6.

On November 28, 2019, Mr. Griffin was diagnosed with cancer and began aggressive medical treatments, including surgeries in November and December of 2019.

On January 15, 2020, Complainant agreed to retroactively extend the Registrar’s Directive compliance deadline “to the end of January 2020.”

On January 31, 2020, Complainant agreed to extend the Registrar’s Directive compliance deadline to February 02, 2020.

On February 03, 2020, Investigator Bernal issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on February 04, 2020, at 11:00 a.m.

On February 03, 2020, Respondent provided notice that Mr. Griffin would not be able to attend because he had an appointment to receive chemotherapy treatment.

On February 04, 2020, Investigator Bernal performed a compliance jobsite inspection and took 19 photographs of the project. Respondent was not present.

On February 25, 2020, Investigator Bernal drafted Jobsite Inspection Notes. Investigator Bernal determined that Respondent successfully remediated 6 of the 7 complaint items he had previously substantiated. The only complaint item Investigator Bernal took issue with was complaint item #2. Although Respondent performed corrective work on compliant item #2, Investigator Bernal concluded that Respondent’s workmanship did not meet the Registrar’s minimum standards as they did not address paint issues “with the four large cabinet doors on each side of the microwave.”

Paint issues regarding the “four large cabinet doors” were not identified for correction at the first jobsite inspection or included in the Registrar’s Directive for remediation.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in this case are clear.

It is clear that Complainant paid Respondent in full for the underlying project. It is clear that some of the work Respondent performed on the project did not meet the Registrar’s minimum workmanship standards. It is also clear that after Complainant’s extension of the Registrar’s post-investigative Directive compliance deadline, that Respondent completed all required remediations. Lastly, it is also clear that Respondent was found to have not performed remediation(s) on items that had not been identified in the Registrar’s Directive.

It was an error not to afford Respondent an opportunity to address alleged workmanship violation(s) that were not identified during Investigator Bernal’s jobsite inspection or included in the Registrar’s Directive. If indeed there had been an unintentional or administrative omission in the Registrar’s Directive that required Respondent to make one or more specific repairs, the Registrar should have issued an Amended Directive. A Citation in this matter should not have been issued.

Because Respondent remediated all substantiated compliant items from the Registrar’s Directive, and whose workmanship was found to be in compliance for each identified complaint item, no violation of Ariz. Rev. Stat. § 32-1154(A)(3) exists.

Because Respondent took appropriate corrective action to address the Directive through the extended compliance period and remediate each identified compliant item therein, as noted by Investigator Bernal’s Compliance Jobsite Inspection Notes, no violation of Ariz. Rev. Stat. § 32-1154(A)(22) exists.

Complainant has not sustained her burden of proof in this matter. As such, no grounds have been established for the Registrar to take disciplinary action against Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that Complaint 2019-05250 be closed.

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, August 04, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors