ALJDEC decisions subject to certification as final

2020A-02479-CHC-ROC · Registrar of Contractors · 2020-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alan Leslie Schwandt,

COMPLAINANT

Allen Wrench, LLC,

License No. ROC 287131,

RESPONDENT

No. 2020A-02479-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 3, 2020

APPEARANCES: Complainant Alan Schwandt appeared on his own behalf. Allen Perdue appeared on behalf of Respondent Allen Wrench, LLC. Arizona Registrar of Contractors Investigator Dennis Bierma was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Allen Wrench, LLC (“Respondent”) is the holder of License No. 287131 issued by the Arizona Registrar of Contractors (“Registrar”). Allen Perdue is Respondent’s qualifying party and owner.

On or about, April 26, 2020, Alan Schwandt (“Complainant”) contracted with Respondent for Respondent to paint the kitchen cabinets at Complainant’s home.

On or about May 18, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Dennis Bierma. A jobsite inspection was conducted on June 16, 2020. Respondent did not attend the jobsite inspection. Following the jobsite inspection, on June 19, 2020, Investigator Bierma issued a Written Directive to Respondent that provided in pertinent 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 28, 2020.

. . . .

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

Complaint Item 1: “Attempted twice to get cabinet painter (Allen) back to see many areas which need more spray application. Painters response was “touch it up yourself”.”

Complaint Item 4: “Several cabinet finished areas are bleeding through and need more coats of paint or spray applications.”

Investigator’s Observation: Verified: These 2 items are related to each other. The paint coating is very thin in areas and is easily visible to see the finish behind the paint. The paint inadequately covers the surface.

Complaint Item 2: “Many cabinet areas starting to peel off or have “orange peel” effect after 2 weeks.”

Investigator’s Observation: Verified: There are a few areas where the paint has completely peeled off, there are a couple areas of the paint bubbling or rough surfaced, there is an area on one bottom cabinet door where the paint is cracking.

Complaint Item 3: “Cream colored paint overspray throughout dark blue island cabinets which touch-up not corrected.”

Investigator’s Observation: Verified: There are white/cream colored spots throughout the blue cabinets, mostly speckles on the doors and around the edges (top, bottom, sides) of the doors has easily visible areas of white color.

Complaint Item 5: “Oversprayed many areas of new wood floor tile, plate rack and appliances which we will need to pay extra to clean.”

Investigator’s Observation: Verified: There are speckles of white paint throughout different areas on the floor and speckles of white paint on the plate rack. There are a couple areas on the floor near the bottom of the cabinets that have a visible white spot.

(Emphasis in original.)

Following the issuance of the Written Directive, and after the deadline therein expired, Complainant notified Investigator Bierma that no corrective work had been performed, and further, that Respondent failed to have any contact with Complainant after the Written Directive had issued.

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).

At hearing, Investigator Bierma testified consistently with the findings contained in the Written Directive. Investigator Bierma testified that he sent Respondent photographs of the deficient work. Investigator Bierma asserted that it was difficult to discuss the issues with Respondent due to the fact that Respondent had not returned to the jobsite to observe the issues. Although Investigator Bierma agreed with Respondent’s contention that “ninety percent of the job is fine,” Investigator Bierma explained that the Registrar’s “workmanship standards are not based on a percentage of work.”

Complainant testified that there are “spots all over” the cabinets, the paint is peeling, and that the original cabinet color is bleeding through the paint. Complainant asserted that the work was not done correctly, and he obtained two estimates that indicate that the work needs to be redone. Complainant testified that Respondent would not return to the jobsite to look at the problems.

Mr. Perdue testified that “ninety percent of the job is satisfactory,” and therefore, the “whole job does not need to be redone.” Mr. Perdue further testified that he has no other complaints and takes pride in his work. Mr. Perdue testified that on the final day of the project, Complainant’s wife “praised” the work after walking cabinet to cabinet with Mr. Perdue. On the final day of the project, Respondent performed touch-up work and cleaned overspray that was on the floor. However, that same evening, Mr. Perdue received a call from Complainant who requested that Respondent clean the home due to the dust that had been left behind. Mr. Perdue testified that Complainant became belligerent with him. Mr. Perdue testified regarding chips in the cabinets being attributable to the tile installers. However, chips in the cabinets were not part of the filed Complaint. Mr. Perdue asserted that the cabinets may have been damaged when Complainant replaced the contents of the cabinets. Mr. Perdue asserted that Respondent “did a wonderful job” and refused to return to the jobsite because he “wants nothing to do with Complainant.”

Administrative notice is taken of Respondent’s prior License record on November 5, 2020. Such prior License record reflects that Respondent’s License No. 287131 was first issued on October 11, 2013, and is active. Such prior License record also reflects that there is only the instant open complaint, zero disciplinary actions, and zero resolved/settled/withdrawn 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 probative and credible evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 undisputed evidence further established that Respondent did not attempt to complete the corrective work following the Written 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. 287131 for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 (30) 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)(7), 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, November 9, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000