ALJDEC decisions subject to certification as final
2020A-05163-CHC-ROC · Registrar of Contractors · 2021-04-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Thomas Frantz,
COMPLAINANT
v.
Citrine Residential And Commercial Painting LLC,
License No. ROC 329565,
RESPONDENT
No. 2020A-05163-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 6, 2021
APPEARANCES: Complainant Thomas Frantz appeared via Google Meet on his own behalf. Jesse Mendez appeared via Google Meet on behalf of Respondent Citrine Residential and Commercial Painting LLC. Beau Cruz, Registrar of Contractors Investigator, appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Citrine Residential and Commercial Painting LLC (Respondent) is the holder of License No. 329565 issued by the Arizona Registrar of Contractors (Registrar).
On or about July 17, 2020, Thomas Frantz (Complainant) signed a contract with Respondent for painting in the interior and exterior of his residence. The contract amount was for $11,850.00 and Complainant has paid $5,000.00.
On or about November 1, 2020, the Registrar received a Complaint containing seventy items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Beau Cruz. The jobsite inspection was performed on November 30, 2020.
Investigator Cruz then issued a written directive on or about December 1, 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 December 31, 2020.
. . .
You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 1: * Lines from wall to ceiling are uneven
Investigator’s Observation: Poor paint cut in between ceiling and walls in
the south (S) hallway, and paint smudge also visible hall at the southeast (S/E) corner, poor paint cut in between ceiling and walls in the north (N) hallway, and paint smudge also visible hall at the northwest (N/W) corner. Poor paint cut in between ceiling and walls in the girl’s bedroom and, Jack and Jill bathroom, in 13 year old daughter’s bedroom and, in the Master Bedroom/Bathroom. Noted subpar cut in of paint throughout the interior with exception of office, laundry room and, mother bedroom.
Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9-
108(A) A contractor shall perform all work in a professional and workmanlike manner and, (B) A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity.
Complaint Item 2: * Many missed spots on exterior
Investigator’s Observation: Poor paint coverage on the south (S) side of the
north (N) entry column from the sidewalk, the south (S) hip gable rake on the front side of the residence, front porch/entry area as well as several other areas of the structure including the main garage door.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 3: * Many missed spot on interior
Investigator’s Observation: Missing paint on right (N) side of arched entry to Great Room from north (N) hallway with evidence of rubbing and or abrasion on surface Respondent stored interior doors in Great Room area after having painted, and poor paint coverage to right of trim casing to entry to Girl’s Bedroom with embedded material beneath.
Governing Rule: N/A: Refer to A.R.S §32-1154(A)(3), namely R4-9- 108(A)(B) cited above.
Complaint Item 4: * Interior doors weren’t prepped properly and flake
Investigator’s Observation: Paint flaking off the exterior of the Master Bedroom door, Master Bathroom door, left latch stile of Girl’s Bedroom door. Noted paint drops and flaking paint on most interior doors with exception of Office Room doors.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 7: * Overspray in many spots of the house, leading to running marks dried into the paint, especially cabinets and built-in
Investigator’s Observation: Running dried paint on built-in entertainment cabinet on the northeast (N/E) corner of the Great Room, on interior soffit wall of the Master Bedroom/Bathroom closet and, south (S) wall of Master Bathroom above vanity cabinet/sinks area.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 13: * Paint spilled and left on tile floor
Investigator’s Observation: Black paint drops on tiled floor of the Great Room near the east (E) wall, and white paint drops on floor tile in the Mud Room.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 14: * Cabinets not prepped properly leading to rough spots and overspray
Investigator’s Observation: Rough surfaces noted on numerous cabinet doors.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 15: * Cabinets not prepped properly, natural wood holes were left unfilled, leading to very low quality look. Options given for repair were to prep it myself or pay $1500. This led to 12 hours of personal manpower.
Investigator’s Observation: Complainant prepped and filled natural wood holes/dimples on surfaces of cabinets prior to respondent prepping and painting, and during prepping surfaces the filled areas had been exposed
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 16: * After personal prep of cabinets, painter used materials that partially removed some of the wood filler, leading back to holes.
Investigator’s Observation: Complainant prepped and filled natural wood holes/dimples on surfaces of cabinets prior to respondent prepping and painting, and during prepping surfaces the filled areas had been exposed
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 17: * After personal prep of cabinets, rough spots all over paint
Investigator’s Observation: Rough surfaces noted on numerous cabinet doors.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 18: * Cabinets are flaking
Investigator’s Observation: Flaking/delaminating paint noted on faux drawer front below Kitchen Island preparation sink.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 20: * Exterior was not cleaned properly before painting leading to debris left stuck in the paint
Investigator’s Observation: Numerous areas with embedded dirt and debris noted on/under the painted exterior surfaces of residence.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 25: * Doors that were not dried placed on interior walls leaving drops of black paint on gray wall
Investigator’s Observation: Noted several areas of black paint on walls in Great Room.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 26: * Deck holes that were to be patched, done very incorrectly, and missed spots to patch. Was told they were redone, but the
weren’t.
Investigator’s Observation: While in the process of prepping surface of walk deck to remove blisters from surface the respondents work in prepping areas was unsightly and not performed in a professional and workmanlike manner and blisters are reappearing on surface and failed to correct all blistered areas.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 29: * Exterior foundation paint flaking by itself
Investigator’s Observation: Stem wall in the rear patio area and detached garage is delaminating.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 30: * Paint dripped on artificial turf, won’t come out
Investigator’s Observation: Dried paint on several areas of the artificial turf in the back yard in the area of paint staging.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
Complaint Item 33: * Deck stairs not prepped leading to debris and clumps stuck in it. Did not repair when told it would be
Investigator’s Observation: Delaminating/peeling paint on tread surfaces of the metal spiral staircase leading to walk-deck with embedded debris/dirt in paint.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above.
(All errors contained in the original)
On January 26, 2021, Investigator Cruz performed a Compliance Jobsite Inspection. In his Notes regarding the same, Investigator Cruz found that Respondent had not come to the property to make any of the corrections per the directive.
On January 28, 2021, 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.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).
On or about February 9, 2021, Respondent e-mailed an Answer to the Registrar.
On or about March 5, 2021, a Notice of Hearing was issued setting a hearing on April 6, 2021 at the Office of Administrative Hearings, an independent state agency.
Investigator Cruz testified as to his involvement and the above timeline.
Investigator Cruz testified that a pre-hearing jobsite inspection was performed on April 2, 2021, at which Respondent failed to appear and that none of the directive items were completed.
Investigator Cruz testified that the time to complete the directive was reasonable.
As to the issue with regard to the contract, Investigator Cruz testified that the contract failed to contain the estimated date of completion, as well language informing Complainant of his “right to file” with the Registrar.
Complainant testified on his own behalf and submitted 9 exhibits into evidence.
Complainant testified that the major issue in this case was lack of communication and oversights. For example, Complainant testified that it was hard to know when the workers would appear and what was going to happen when they were there. Also, Complainant testified that there was a 20 day delay due to the COVID-19 pandemic.
Complainant testified as to two specific items, namely the cherry cabinets and the deck. As to the latter, Complainant testified that there were multiple repairs needed on the deck.
As to the cherry cabinets, Complainant testified that there were natural holes in the wood that should have been filled, and when he brought this to the attention of Mr. Mendez, he was told it would cost an additional $1,500.00 to complete the work, and that none of his other customers requested that this prep work be completed.
Complainant testified that during the jobsite inspection there was a discussion with Mr. Mendez, but that once the directive was issued, there was no communication until January 1, 2021, with Mr. Mendez not responding until January 6, 2021.
Jesse Mendez testified on behalf of Respondent.
Mr. Mendez testified that he had been suffering from depression as his father had passed away in August which probably contributed to the lack of communication.
In addition, Mr. Mendez testified that at the time of the jobsite inspection, he and Complainant agreed that the corrective work would be performed after the holidays.
Mr. Mendez also testified that he did not receive the telephone call and the email from Investigator Cruz on January 26, 2021, so he did not know that the compliance inspection was taking place that day. He testified that he believed someone took him off of the e-mail correspondence chain. However, Mr. Mendez could not explain why there was a response sent from “[email redacted]” acknowledging Mr. Cruz’s e-mail.
Administrative notice is taken of Respondent’s prior License record on April 16 2021. Such prior License record reflects that Respondent’s License No. 329565 was first issued on July 6, 2020, and reflects that there is 1 open complaint, namely the present complaint. The license s is also suspended as of January 8, 2021 due to the lack of a qualifying party.
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 and Mr. Mendez did not dispute that the contract failed to contain an estimated completion date, as well as the “right to file” language, thus Respondent is in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.
The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Mendez did not dispute that there were issues with the work performed. 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 Respondent failed to complete the corrective work following the Directive being issued. There was no credible evidence presented demonstrating Mr. Mendez’s assertion that the parties had agreed to have Respondent complete the corrective work after the holidays. 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. 329565 for a period of five 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 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 30 days from the date of that certification.
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Done this day, April 16, 2021.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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