ALJDEC decisions subject to certification as final

2020A-02423-CHC-ROC · Registrar of Contractors · 2020-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cynthia D. Ahlers,

COMPLAINANT,

Gingrich and Daughters Painting Inc.,

License No. ROC 151711,

RESPONDENT.

No. 2020A-02423-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 15, 2020

APPEARANCES: Complainant Cynthia D. Ahlers appeared on behalf of herself. Rick Carter, Esq. appeared on behalf of Respondent Gingrich and Daughters Painting, Inc. (Gingrich).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Gingrich holds License No. 151711, issued by the Arizona Registrar of Contractors (Registrar).

Richard Jouni Kariniemi is the qualifying party for Gingrich.

On or about February 27, 2020, Gingrich agreed to paint the home of

Complainant Cynthia D. Ahlers.

4. The written agreement did not include language that advised Ms. Ahlers of

her right to file a complaint with the Registrar against Gingrich for an alleged violation of Ariz. Rev. Stat. section 32-1154(A), within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

5. On or about February 27, 2020, Gingrich started work.

6. On or about May 14, 2020, Gingrich stopped work. 7. The Registrar received a complaint from Ms. Ahlers alleging poor

workmanship on the part of Gingrich in connection with a house painting project.

8. On or about June 5, 2020, Registrar Investigator Steve Philpott conducted

a job-site inspection.

9. Mr. Ahlers filed an addendum to the complaint.

10. On or about June 24, 2020, Investigator Philpott conducted a second job-

site inspection.

11. On or about June 10, 2020, the Registrar issued a Directive to Gingrich

that provided, in relevant part, 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 July 10, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the

suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 3 - Wrong paint used on house.

Investigator’s Observation: This complaint item is verified. The proposal calls for 2 coats of Satin paint; however solid stain was used.

Respondent shall correct by appropriate means

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award.

A. 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:

2. Departure from or disregard of plans or specifications .... without consent of the owner .........

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - (complaint item added at JSI) Gutters not painted.

Investigator’s Observation: This complaint item is verified. Per Jobsite agreement, Respondent will paint gutters. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

12. On or about June 25, 2020, Investigator Philpott modified the June 10,

2020 Directive to include Ms. Ahlers’s addendum. The deadline to comply with the Directive was extended to July 25, 2020. The modified Directive provided in relevant part, as follows:

DIRECTIVE REQUIREMENTS

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

Compliance Item: 3 - Wrong paint used on house.

Investigator’s Observation: This complaint item is verified. The proposal calls for 2 coats of Satin paint; however solid stain was used.

Respondent shall correct by appropriate means

Governing Rule: §32-1154. Grounds for suspension or revocation of license;continuing jurisdiction; civil penalty; recovery fund award

A. 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:

2. Departure from or disregard of plans or specifications .... without consent of the owner .........

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - (complaint item added at JSI) Gutters not painted.

Investigator’s Observation: This complaint item is verified. Per Jobsite agreement, Respondent will paint gutters. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Addendum complaint item:

Complaint Item 2. WORKMANSHIP AND INCOMPLETE WORK

A. Brackets on gutters and downspouts still not closed (SEE ATTACHED)

Investigator’s Observation: This complaint item is verified. The gutter down spout brackets on the pipe near the rain barrel on the south side of the home have not been re-secured. Respondent shall correct by appropriate means.

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-108 WORKMANSHIP STANDARDS

A. A contractor shall perform all work in a professional manner.

B. Pine needles painted into the house (SEE ATTACHED)

Investigator’s Observation: This complaint item is verified. The window at the front of the house has pine needles embedded into the paint of the lower trim piece. Respondent shall correct by appropriate means.

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-108 WORKMANSHIP STANDARD

C. Painted mailbox, which was paid for is not well done (SEE ATTACHED)

Investigator’s Observation: This complaint item is verified. Black overspray paint is present on the mailbox flag. Respondent shall correct by appropriate means.

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-108 WORKMANSHIP STANDARDS

D. Paint around outdoor light fixtures sloppy (SEE ATTACHED)

Investigator’s Observation: Investigator’s Observation: Per Jobsite agreement, respondent will perform touch up work.

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-10 WORKMANSHIP STANDARDS

E. Outdoor Plugs/Outlets painted sloppy (SEE ATTACHED)

Investigator’s Observation: This complaint item is verified. For repaint projects like this, it is not uncommon to paint the outlet covers. However, it is unacceptable to paint the duplex out. Two outlets were identified, one by the front door and the second near the back deck. Respondent shall

correct by appropriate means.

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-108 WORKMANSHIP STANDARDS

F. Water hose knob painted sloppy – shouldn’t have been painted (SEE ATTACHED)

Investigator’s Observation: This complaint item is verified. The hose bib is located on the south side of the home. See Photos take as this JSI.

Respondent shall correct by appropriate means

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-108 WORKMANSHIP STANDARDS

G. Drips of paint on light post (SEE ATTACHED). Also, top part is not painted. This was paid for in addition to the proposal

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-108 WORKMANSHIP STANDARDS

H. Wall by garage door is already chipping (SEE ATTACHED)

Investigator’s Observation: Per Jobsite agreement, respondent will perform touch up work.

Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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. RULE 4-9-108 WORKMANSHIP STANDARDS

Complaint Item 3: PAINT/STAIN CONFLICT

A. WHITE FACIA TRIM, GUTTERS: expected Kelly Moore’s Satin Paint; received Kelly Moore’s semi-gloss Paint

Investigator’s Observation: This complaint item is verified. The specifications call for satin sheen and a semi-gloss has been used.

Respondent shall correct by appropriate means.

Governing Rule:§32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award

A. 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:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

......................

13. Gingrich did not comply with the Directive by the deadline.

14. On August 6, 2020, Investigator Philpott conducted a compliance

job-site Inspection. Investigator Philpott found that Gingrich had not complied with the Registrar’s Directive.

15. Investigator Philpott’s Compliance job-site inspection notes

provided, in relevant part, as follows:

Compliance Jobsite General Notes: On June 10, 2020 a written directive was issued. On June 25, 2020 the Directive was modified to include addendum complaint items.

Compliance Findings: The Respondent has mostly complied with the ROC directive, however final touch up work was not performed.

The following “punchlist items” remained unfinish at this inspection:

• White specs of paint on the bottom piece of trim on front

window frame

• White specs of paint on a patio chair on the front deck

• White specs of paint on the front deck and front deck bench

• Gutter on North side of house alleged to be install backwards

• Spec of white paint on Retaining wall near garage door

• White specs of paint on window trim on the east side of the

south facing wall.

• Gray paint on fence – left of the gate handle

• Several white specs of paint on rear gray deck

• Evidence of a gutter downspout leak on the NW - back side of

the house

• Paint drips on a piece of fascia about back patio door

• Red paint on Gate on the north side of the house.

• Unfinished work on the fascia above entry

• Overspray gray paint on the brickwork at entry

16. On August 10, 2020, the Registrar issued a Citation that contained

allegations that Gingrich may have violated A.A.C. Rule 4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(12), (A)(22); and Ariz. Rev. Stat. section 32-1158. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Gingrich’s license.

17. Gingrich filed a timely appeal to the Citation.

18. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

19. A hearing was held on October 15, 2020.

20. At hearing, Ms. Ahlers testified on her own behalf. Mr. Kareniemi testified

on behalf of Gingrich. Investigator Philpott testified regarding his investigation of the complaint and issuance of the Directive.

21. Ms. Ahlers testified that Gingrich performed poor work when it painted her

home.

22. Gingrich contended that the items that Investigator Philpott found to be

“unfinished” were cosmetic and did not fall below minimum workmanship standards. Gingrich argued that the items listed in Investigator Philpott’s compliance inspection notes were not a part of the Directive. Gingrich contended that the Registrar was required to give Gingrich the opportunity to correct the items listed in Investigator Philpott’s Compliance job-site inspection notes.

CONCLUSIONS OF LAW

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

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

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).

Having considered the evidence presented at hearing, the Administrative

Law Judge concludes that the preponderance of the evidence showed that the issues found by Investigator Philpott demonstrate that Gingrich failed to perform construction work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

5. The preponderance of the evidence showed that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

6. The undisputed evidence established that the contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 151711 of Gingrich and Daughters Painting Inc., for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, October 15, 2020.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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