ALJDEC decisions subject to certification as final

2019A-05382-CHC-ROC · Registrar of Contractors · 2020-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dennis J William Vegh,

COMPLAINANT

Rocky Mountain Image LLC,

ROC License: ROC 325329,

RESPONDENT

No. 2019A-05382-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 4, 2020.

APPEARANCES: Dennis Vegh, Complainant, appeared on his own behalf. Tristan McConnachie represented Rocky Mountain Image LLC, Respondent.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera.

_____________________________________________________________________

FINDINGS OF FACT

On or about July 11, 2019, the Registrar of Contractors (ROC) issued License No. 325329 for Specialty Dual CR-34 Painting and Wall Covering to Rocky Mountain Image LLC (Respondent). Respondent’s address of record for the license is 21086 East Avenida Del Valle, Queen Creek, AZ 85142-4865. Tristan McConnachie is listed on the license as Qualifying Party and Member.

Administrative Notice is taken of Respondent’s prior License record, for License No. 317391, as reflected on the ROC’s public website on March 4, 2020. Such prior License record reflects that Respondent’s license is currently active. The record reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond issued through RLI Insurance Company effective June 7, 2019.

On or about September 4, 2019, Dennis Vegh (Complainant) entered into a written contract whereby Respondent agreed to paint the interior of Complainant’s residential property located at 18496 South 96th Street, Mesa, AZ 85209 for the sum total of $1,707.00. The project commenced on September 23, 2019. Complainant paid Respondent a total $2,670.85 by the time Respondent stopped working on the date of October 17, 2019.

On or about October 25, 2019, the ROC received a workmanship complaint alleging poor workmanship. The Complaint included a copy of the contractual agreement between the parties.

On or about October 30, 2019, the ROC issued a Jobsite Inspection Notification letter to the parties, providing proper notice to them, and advising that an onsite review would be conducted at the project site by an ROC investigator on December 4, 2019, at 8:15 a.m.

On or about October 30, 2019, ROC Investigator Beau Cruz (Investigator Cruz) conducted a review of the contract executed between the parties. Investigator Cruz also inspected the work that had been done on the project to date and took approximately 17 photographs. Respondent was not present.

On or about December 5, 2019, Investigator Cruz issued a Directive from the Registrar (Directive) to Respondent because he substantiated Complainant’s allegation that Respondent’s work failed to meet minimum ROC workmanship standards. Specifically, Respondent was ordered to remediate complaint items 1-3 and 5-6 via appropriate means. Respondent was put on notice that it had until December 21, 2019, to notify the ROC of its compliance with the corrective order or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. § 32-1154(A)(22) and 32-1154(E). Respondent failed to timely comply.

On or about December 27, 2019, the ROC issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. § 32-1154(A)(3), Ariz. Rev. Stat. § 32-1154(A)(12)-32-1158, and 32-1154(A)(22), and Ariz. Admin. Code R4-9-108. Respondent was given until January 15, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1154(A)(22) and 32-1155.

On or about January 12, 2020, Respondent filed its Written Answer to Citation and Complaint. In its Answer, Respondent stated that it did not receive any letters from the ROC except for the Citation. Had Respondent received the Complaint, it would have addressed the issues immediately. Respondent stated that, upon completion, Complainant was satisfied with Respondent’s work and paid Respondent in full. Complainant later complained about the color. Respondent attempted to correct the issues. However, on the day Respondent was supposed to go to Complainant’s house, Complainant told Respondent not to come because he was going to file a Complaint. Respondent indicated that it was willing to fix any and all issues.

On or about March 3, 2020, Investigator Cruz conducted a prehearing inspection. Respondent was not present during this inspection. Investigator Cruz observed that no corrective work had been done.

On January 22, 2020, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on March 4, 2020.

HEARING EVIDENCE

At the hearing, Investigator Cruz testified that the missing contract elements were that there was no estimated completion date and that it did not have the verbiage instructing Complainant that he could file a complaint with the ROC.

At the hearing, Complainant presented the testimony of Lori Reynolds. Ms. Reynolds was Complainant’s partner. Ms. Reynolds testified that the tape lines were crooked, that the paint bled through in some areas, that there was paint on the baseboard, and that there were dirty hand prints on the walls. Additionally, the paint did not match and it was not the color Complainant had contracted for.

Complainant presented the testimony of Tristan McConnachie, Respondent’s qualified party and member. Tristan McConnachie testified that after completion, Complainant told him that the painting was incomplete. Tristan McConnachie asked Complainant to buy more paint. Complainant bought more paint and Tristan McConnachie completed the work.

Complainant also changed his mind about the stripes. A second contract was drafted. Complainant paid Tristan McConnachie to repaint the hallway. Tristan McConnachie completed the second contract.

Tristan McConnachie did not attend the Jobsite Inspection because he never received the notification letter. Tristan McConnachie did not comply with the Directive because he did not receive the Directive. Once he received the Citation, he filed his Answer. Tristan McConnachie acknowledged that he received the Notice of Hearing and Complainant’s disclosure statement.

Tristan McConnachie acknowledged that there were areas that needed to be corrected. Complainant’s Exhibits A-R illustrated the areas that failed to meet minimum workmanship standards and that needed to be fixed.

Complainant presented the testimony of Michael McConnachie. Michael McConnachie testified that he was Respondent’s owner in Colorado and the financial backer of Respondent in Arizona. Michael McConnachie acknowledged that there were areas that fell below the minimum workmanship standards and needed to be fixed. He also acknowledged that the first contract did not specify the color and that was a mistake. Michael McConnachie opined that Complainant denied Respondent the opportunity to correct the issues.

Complainant testified that he contracted with Respondent to paint interior rooms in his house. Respondent painted the rooms with the wrong color despite color matching. Complainant stated that he felt bad that Respondent spent all day painting the wrong color. Complainant offered to pay for the materials if Respondent repainted the walls for free. Respondent agreed to do so. Complainant bought paint under Respondent’s business account in order to save some money.

Additionally, Complainant acknowledged that the hallway was also the wrong color and that Complainant changed his mind regarding the color. Respondent created a new contract. Under the new contract, Complainant paid for the materials and labor. Respondent completed the second contract.

Complainant, however, was still not happy with the color. Complainant notified Respondent. Respondent never scheduled a date to come and correct the color issue.

Complainant acknowledged that on or about October 21, 2019, Respondent offered to come and fix it, but Complainant told Respondent not to come because he wanted the ROC to see the condition of the painting as it was.

At the hearing, Tristan McConnachie testified that he contracted with Complainant to paint the great room and color match the walls and accent walls. He was also contracted to paint stripes in the hallway. Upon completion, Complainant and Tristan McConnachie conducted a walk through. Complainant was satisfied with the painting. The next day, Complainant contacted Tristan McConnachie and told him that he did not like the color.

Tristan McConnachie acknowledged that he made mistakes. On or about October 21, 2019, he agreed to go to Complainant’s house to fix those mistakes. Complainant filed the Complaint before Tristan McConnachie could fix anything.

Tristan McConnachie reiterated that he never received any documentation from the ROC with respect to the Complaint, Jobsite Inspection, or Directive. Tristan McConnachie stated the he would have complied with the Directive had he received it. He wanted to correct the issues. Tristan McConnachie suggested that if he was not able to correct the issues, he would pay Complainant to have someone else correct the work.

CONCLUSIONS OF LAW

The ROC has jurisdiction over this matter pursuant to Ariz. Rev. Stat. § 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. § 41-1092 et seq.

The ROC 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.

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

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. 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)(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. Rev. Stat. § 32-1158 holds, in pertinent part, that “[a]ny contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

4. The estimated date of completion of all work to be performed under the contract.

5. A description of the work to be performed under the contract.

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

Ariz. Rev. Stat. § 32-1154(A)(22) holds, 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 ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

It is undisputed that Complainant contracted with Respondent to paint interior walls. Complainant and Respondent entered into two contracts. Respondent’s work fell below the ROC’s minimum workmanship standards after completion of the contracts. By its own admission, Respondent admitted to that there were areas that fell below minimum workmanship standard. Thus, there are sufficient facts in the record to conclude that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(3).

Complainant established that the paint color was not specified on the first contract. There was also evidence that Respondent failed to include the estimated time of completion and the verbiage that gave Complainant the right to file a complaint with the ROC in either of the contracts. Thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(12) - A.R.S. § 32-1158.

The evidence established that Respondent was not given the chance to perform corrective work after the Directive was issued. Respondent established that it did not receive the Complainant, the Jobsite Inspection, or the Directive. The ROC allows contractors the opportunity to perform corrective work before the compliance deadline. Without knowledge of the Directive, Respondent was unable to perform corrective work and unable to comply with the deadline. Therefore, Respondent cannot properly be disciplined for the violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing,

IS RECOMMENDED that the Registrar suspend Rocky Mountain Image LLC,

ROC License number 325329, issued by the Registrar, until it has provided to the Registrar, and the Registrar has accepted, a form contract that is in accordance to the requirements set forth in Ariz. Rev. Stat. § 32-1158.

IT IS FURTHER RECOMMENDED that Respondent be given the opportunity to correct the items on the Directive given the fact that Respondent was not in receipt of the Directive. Respondent must submit proof of compliance within 20 days of receipt of this decision. Failure to comply with this recommendation will result in a suspension for a period of one (1) day.

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, March 24, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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