ALJDEC decisions subject to certification as final

2020A-00810-CHC-ROC · Registrar of Contractors · 2020-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bertha Gail Stellwagen,

COMPLAINANT

Hugh Stewart,

License No. ROC 153540,

RESPONDENT

No. 2020A-00810-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 27, 2020

APPEARANCES: Complainant, Bertha Gail Stellwagen appeared in person. Respondent, Hugh Stewart appeared via Google Meet. Dennis Bierma, Investigator for the Registrar of Contractors, appeared via Google Meet

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Hugh Steward (Respondent) is the holder of License No. 153540 issued by the Arizona Registrar of Contractors (Registrar).

In January, 2020, Bertha Gail Stellwagen (Complainant) signed a contract with Respondent to paint her house as well as a shed located on her property. The initial contracted price was $2,300.00 for the house and $300.00 for the shed.

On or about February 19, 2020, the Registrar received a Complaint alleging poor work with respect to the painting of the structures.

The Registrar assigned the Complaint to Investigator Dennis Bierma. The inspection was performed on April 9, 2020,

Investigator Bierma found that the painting on both the house and the shed was deficient, and Investigator Bierma next issued a Written Directive on or about April 16, 2020 to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 18, 2020.

. . .

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

Complaint Item 1: “Paint job done on the house.”

Investigator’s Observation: Verified: Upon observation of the paint job on the house it has been verified there are issues. Example: There are areas throughout of paint missing, paint not matching, paint peeling, trim work not matching, touch up areas incomplete, electrical boxes not consistent, outlets painted closed. Paint issues throughout. Respondent shall complete and correct project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9108: (A) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “Paint job done the shed.”

Investigator’s Observation: Verified: Upon observation of the paint job on the shed it has been verified there are issues. Example: There are areas throughout of paint missing, paint not matching, paint peeling, trim work not matching, touch up areas incomplete. Paint issues throughout. Respondent shall complete and correct project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9108: (A) A contractor shall perform work in a professional and workmanlike manner.

After the deadline in the directive expired, Investigator Bierma was notified that the corrective work had not been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

No Compliance Jobsite Inspection was performed.

Investigator Bierma testified that after the Directive was issued, there was a lot of communication between the parties to resolve the situation. It was his understanding there was also a disagreement between the parties as to how the work was to be corrected. As such, there was no corrective work performed.

Investigator Bierma testified that he had experience in painting which led him to the conclusions he reached in the Written Directive, but that he could not give advice to Respondent has to how to best remedy the situation.

Complainant testified that in general that the painting was sloppy. The paint did not match in areas, paint would be all over the grass and not at the bottom of the structure, paint was peeling, the primer was bleeding through, and the trim work was not matching to name a few.

Complainant testified that it took a long time to paint, around six or seven days to complete the project. When the project was completed, she notified Respondent that the painting was not up to her satisfaction. Complainant then testified that the parties agreed that Respondent would re-do the entire project.

Complainant further testified that because only three-quarters of the house was pre-washed, she had agreed to pay Respondent an additional $300.00 so Respondent could apply the primer, Killz, to the house and start over.

Once the structures were painted for the second time, Complainant testified that the work was still not satisfactory and she filed a Complaint with the Registrar of Contractors.

Finally, Complainant testified that she received a quote from another painter who would charge her $3,200.00 to re-paint the two structures and another painter told her that it would be more cost effective to have Respondent correct his work.

Stephen Downs testified as Complainant’s witness. He was a friend of Complainant and testified that when he saw the paint job, he believed it was not acceptable for the money and that Respondent did a very poor job.

Respondent testified that he has been licensed for twenty years and he has not had any complaints. He testified that it was his business practice to not seek deposits or ask customers to put any money down for his work. He testified generally that there was no pleasing Complainant, but that he was still more than willing to work with Complainant.

Further, Respondent testified that when Complainant was dissatisfied after the first attempt, he sought the advice of a Dunn-Edwards representative who advised him as to what type of primer product to use prior to commencing the work again.

Even after the second attempt of painting the structures, Respondent testified that Complainant was still not satisfied so he attempted to work out a settlement for a refund of some of the monies paid, in exchange for Complainant waiving all complaints.

In addition, Respondent testified that Complainant was difficult to work with as she would not cooperate with inspecting the painting upon completion.

Finally, Respondent admitted that he did not complete the items listed in the Written Directive from Investigator Bierma for a myriad of reasons, such as he did not know how to make Complainant satisfied with his work, the COVID-19 pandemic, and at the time, he resided in Maryland.

Administrative notice is taken of Respondent’s prior License record on July 29, 2020. Such prior License record reflects that Respondent’s License No. 153540 was first issued on March 29, 2000, and is current. Such prior License record also reflects that there was one open complaint, namely the present complaint, and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The painting on both structures suffered from missing paint, paint not matching, inconsistent paint in areas, paint peeling, and incomplete touch up areas. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that although Respondent re-painted the structures prior to the Complaint being filed with the Registrar, he did not attempt to complete the corrective work following the Directive being issued. Therefore, 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 153540 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 Registrar’s final order, the Registrar 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.

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-137160-45720000Done this day, August 6, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000