ALJDEC decisions subject to certification as final

2020A-03429-CHC-ROC · Registrar of Contractors · 2021-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Drew Randall Turnage and

Heather Turnage,

COMPLAINANTS

Mercer Painting & Drywall, LLC,

License Number ROC 328606, 328605,

RESPONDENT

No. 2020A-03429-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 22, 2021

APPEARANCES: Complainants Drew Randall Turnage and Heather Turnage appeared on their own behalf. Respondent Mercer Painting & Drywall, LLC failed to appear. Arizona Registrar of Contractors Investigator Albert Bernal was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Mercer Painting & Drywall, LLC (“Respondent”) is the holder of License Nos. 328606 and 328605 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about July 7, 2020, Drew and Heather Turnage (“Complainants”) contracted with Respondent for Respondent to paint the exterior of Complainants’ home. The contract specified the following in pertinent part: “Prep, this includes . . . the filling of cracking stucco with elastomeric sand finish.” See Complainants’ Exhibit 2.

On or about July 16, 2020, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Albert Bernal. After an August 17, 2020 Jobsite Inspection, Investigator Bernal issued a Written Directive 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 September 18, 2020.

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

Compliance Item: 1 - Stucco patching installed on all exterior walls of the

house was applied too thick, was not properly feathered into the crack only

(applied to exterior wall adjacent to the cracks, as well), and a smooth finish

was used for all patch work which does not match the existing sand finish on the stucco. When new paint was applied over the areas where stucco patch was installed, the patchwork is completely visible thru the paint due to the issues noted above. We have been told by other tradesman who have viewed the work that the only fix is to install a new stucco finish coat throughout to re-create uniformity, prime the new finish coat, then re-paint. There are also still existing hairline cracks in the stucco that were not addressed, some of which are showing through areas that were painted.

Investigator’s Observation: I noted that the stucco patching material applied to wall surfaces was inconsistent in its application, and noticeable after wall surfaces were painted. The difference in the stucco texture was visible in comparison to all existing areas that were not affected and/or repaired. The areas that the Respondent shall correct by appropriate means are all the areas and surfaces that were painted and finished.

Following the issuance of the Written Directive, Respondent performed corrective work and requested a Compliance Inspection.

Investigator Bernal conducted a Compliance Inspection on September 23, 2020, at which only Complainants were present. Investigator Bernal’s Compliance Jobsite Inspection Notes indicate the following:

This Compliance jobsite inspection was in regards to a stucco crack repair and paint job performed at the Complainants residence. The Complainant stated during the jobsite inspection that he stopped the work before the Respondent finished the whole project because he (Complainant) noted that the stucco crack patching texture was visible after finished paint was applied to the areas in question, and the texture did not matched the existing sand finish.

At this Compliance jobsite inspection I was able to determine that poor workmanship issues still existed in the areas that were corrected and finished however, unfinished areas were not inspected due to work stopped by Complainant before the whole project was completed.

Compliance Findings:

Compliance Item: 1 - Stucco patching installed on all exterior walls of the house was applied too thick, was not properly feathered into the crack only (applied to exterior wall adjacent to the cracks, as well), and a smooth finish was used for all patch work which does not match the existing sand finish on the stucco. When new paint was applied over the areas where stucco patch was installed, the patchwork is completely visible thru the paint due to the issues noted above. We have been told by other tradesman who have viewed the work that the only fix is to install a new stucco finish coat throughout to re-create uniformity, prime the new finish coat, then re-paint. There are also still existing hairline cracks in the stucco that were not addressed, some of which are showing through areas that were painted.

Investigator’s Observation: I noted that the stucco texture applied to repair the stucco cracks on the walls in question was noticeable and inconsistent in comparison with areas in the same walls where repairs were not required. These areas are: The front garage wall of the residence, and all areas repaired on the left side wall of the residence (garage side of the house). The Respondent did not comply with this directive item. Directive has not been fully complied with.

The Respondent did not fully comply with this Directive. Item # 1 is incomplete.

This case will be sent to the ROC Legal Department for further action.

Thereafter, Investigator Bernal forwarded the matter to the Registrar’s Legal Department. 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(a); and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing was scheduled to convene on January 8, 2021, at 9:00 a.m. On the date and at the time set for hearing, Complainants appeared on their own behalf. Cory Mercer appeared on behalf of Respondent. Investigator Bernal was present. The parties participated in a pre-hearing discussion outside of the presence of the Administrative Law Judge and reached a resolution of the dispute in principle, however, requested additional time to execute the agreement. The hearing was continued and set for a Status Update by February 5, 2021.

On January 19, 2021, Complainants notified the Tribunal that the parties’ attempts at resolving the matter were unsuccessful and requested that the matter be set for hearing.

On January 21, 2021, an Order setting a continued hearing was issued to the parties advising that the hearing was scheduled for March 29, 2021, at 9:00 a.m.

On January 22, 2021, Complainants filed a request to accelerate the hearing date. On January 22, 2021, Complainants’ request to accelerate the hearing date was granted, and an Order advising of the February 22, 2021, 9:00 a.m. hearing was issued to the parties. That Order contained the Google Meet link to join the hearing by video or by telephone. It was issued to Respondent’s email address of record that had been used throughout the course of the proceedings.

Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Bernal testified consistently with his findings contained in the Written Directive and the Compliance Jobsite Inspection Notes.

Mr. Turnage testified regarding the fact that the parties’ contract specified that the patching of the stucco would be completed using elastomeric sand finish. Notwithstanding such specification, Respondent used a smooth finish product. See Complainants’ Exhibit 3. Mr. Turnage contended that the use of a smooth finish rather than the specified sand finish, resulted in the stucco patches being a different texture from the rest of the stucco which was clearly visible through the paint. See photographs contained in the Administrative Record and Complainants’ Exhibits 4, 5, 6, 9 and 11.

Administrative notice is taken of Respondent’s prior License record on February 25, 2021. Such prior License record reflects that Respondent’s License No. 328606 was first issued on April 24, 2020, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled/withdrawn complaints, and no discipline against Respondent’s license. Such prior License record further reflects that Respondent’s License No. 328605 was first issued on April 24, 2020, and is active. Such prior License record reflects that there are no open complaints, no resolved/settled/withdrawn complaints, and no discipline against this license.

CONCLUSIONS OF LAW

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

Complainants bear 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. Therefore, Complainants 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(a).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued. Therefore, Complainants 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 Nos. 328606 and 328605 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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, February 26, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000