ALJDEC decisions subject to certification as final
2021A-01330-CHC-ROC · Registrar of Contractors · 2021-09-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Sarah Elizabeth Nellis,
COMPLAINANT
v.
Badgerland Decorating Inc
License No. ROC 198440,
RESPONDENT
No. 2021A-01330-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 27, 2021
APPEARANCES: Complainant Sarah Nellis appeared on her own behalf. Investigator Randy Morris appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Badgerland Decorating, Inc. (Respondent) is the holder of License No. 198440 issued by the Arizona Registrar of Contractors (Registrar).
On or about February 4, 2021 Sarah Nellis (Complainant) agreed to have Respondent install baseboards and paint her business. The total cost was to be $3,500.00.
On or about March 29, 2021, the Registrar received a Complaint containing ten items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Randy Morris. The jobsite inspection was performed on April 22, 2021.
Investigator Morris then issued a written directive on or about April 28, 2021, to Respondent that provided as follows:
After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 June 1, 2021.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Prior to the JSI, it was determined that the Respondent was contracting with a suspended license, which is in violation of statute ARS 32-1154 (A) (17): “Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” The violation has been noted and permanently documented in the Respondent’s file.
It was also noted that the Respondent is in violation of 32-1158 (A) Minimum elements of a contract, the submitted contract does not have the nine elements of a contract. A warning letter has been issued and permanently documents in the Respondent’s file.
Compliance Item: - 1. “1. bathroom paint is sheer, can still see blue underneath”
Investigator’s Observation: Observed that paint in the bathroom is thin and unevenly applied, resulting in prior paint being visible through the new paint. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 2. “2. baseboards painted are uneven”
Investigator’s Observation: Observed gaps and inconsistent surface preparation at the baseboards, caulk voids noted at joints and corners, paint was noted to be thin and inconsistent on baseboards and excessive over brushing of paint noted on floor covering below/adjacent to the baseboards. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 3. “3. all areas above the baseboards it is uneven from being ripped up and painted over”
Investigator’s Observation: The drywall surfaces above the removed and replaced baseboards was not prepared properly, surface does not appear to have been leveled/sanded properly, uneven and inconsistent texture of the surface is very visible. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 4. “4. marks and holes on the walls all throughout”
Investigator’s Observation: Wall surfaces have not been prepared properly, finish is rough, uneven and inconsistent, texture is thin with visible drywall tape noted at many of the wall interior corners. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 5. “5. gaps in door frame”
Investigator’s Observation: See Complaint Item #4. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 6. “6. painted over dust in spray tanning room”
Investigator’s Observation: See Complaint Item #4. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 7. “7. uneven paint throughout around baseboards”
Investigator’s Observation: See Complaint Items #3 & #4. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 8. “8. uneven paint all throughout around electrical plates”
Investigator’s Observation: See Complaint Item #4. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 9. “9. uneven paint through hallways and rooms”
Investigator’s Observation: See Complaint Item #4. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliance Item: - 10. “10. mudding is uneven throughout”
Investigator’s Observation: See Complaint Items #3 & #4. The work does not meet the minimum workmanship standards. The allegation is verified.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
(All errors contained in the original)
On June 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); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; A.R.S. § 32-1154(A)(17); and A.R.S. § 32-1154(A)(22).
On or about July 9, 2021, Respondent e-mailed an Answer to the Registrar, stating that Complainant waited 10 days to contact him back regarding scheduling a time to complete the Directive.
On or about July 26, 2021, a Notice of Hearing was issued setting a hearing on August 27, 2021 at the Office of Administrative Hearings, an independent state agency.
The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.
At hearing, Investigator Morris testified as to the Registrar’s involvement and the above timeline.
Investigator Morris testified that Respondent failed to appear at the Jobsite Inspection. However, Mr. Dave Zaitz on behalf of Respondent appeared at Investigator Morris’ vehicle after the inspection. Investigator Morris testified that Mr. Zaitz stated that he did not want to go into the jobsite.
Investigator Morris testified further, that Mr. Zaitz did not leave a voicemail as indicated in the Answer and was silent through the investigation.
Investigator Morris testified that because Respondent’s license was already suspended, he could have offered a settlement to Complainant to resolve the complaint.
Investigator Morris testified that the invoices provided on the project did not meet the minimum required elements of a contract, as it did not contain the license number, did not contain Respondent’s address, estimated date of completion and the “right to file” language.
Sarah Nellis testified on her own behalf. She testified that she was not aware that Respondent’s license had been suspended before agreeing to have the work performed.
Ms. Nellis testified further that the work was done improperly as Respondent used the incorrect paint, the painting was uneven, and the baseboards were uneven.
Ms. Nellis testified that Mr. Zaitz sent a text message on May 10, 2021, and while there was some delay in responding, he never denied access.
Administrative notice is taken of Respondent’s prior License record on September 8, 2021. Such prior License record reflects that Respondent’s License No. 198440 was first issued on August 9, 2004, and reflects that there was one open complaint, namely the present complaint.
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 Vazzano 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The paint was the incorrect color and uneven throughout the project; the areas above the baseboards were uneven and there were makes/holes on the walls throughout the entire project. 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(A).
As to contracting on a suspended license, upon review of the Registrar’s website, the information contained therein does not indicate that the license was suspended as there was only the present complaint displayed. Thus, there was no violation of A.R.S. § 32-1154(A)(17).
The preponderance of the evidence established, that the invoices presented did not meet the minimum elements of a contract for this project in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.
The evidence established Respondent failed to complete the corrective work following the Directive being issued. Even if Mr. Zaitz sent a text message to Complainant on May 10, 2021, that was still 12 days after the Directive was issued. Further, the Tribunal is not persuaded by Mr. Zaitz’s e-mailed Answer to the Complaint that Complainant denied access. 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. 198440 for a period of ten 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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-137160-45720000Done this day, September 8, 2021.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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