ALJDEC decisions subject to certification as final

2021A-02307-CHC-ROC · Registrar of Contractors · 2021-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anne Ahern ,

COMPLAINANT,

Triple Lee Painting LLC

License No. ROC 329079,

RESPONDENT

No. 2021A-02307-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 07, 2021 at 9:00 AM.

APPEARANCES: Anne Ahern (“Complainant”) appeared on her own behalf. Steven Lawton appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of Triple Lee Painting LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On May 29, 2020, the Registrar issued License No. 329079 for Specialty Dual CR-34 Painting and Wall Covering contracting to Respondent. Respondent’s address of record for the license is 15413 W Mercer Ln, Surprise, AZ 85379. Roy Lee Northcott III is listed as the Qualifying Party and Member on the license.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 329079, as reflected on the Registrar’s public website. Such prior license record reflects that Respondent’s license is active and currently renewed through May 31, 2022. The license is in good standing and has not been previously disciplined. The record reflects that there are two open complaints against Respondent’s license, one of which is presumed to be related to this matter. Respondent has a $6,750.00 surety bond for the license issued through RLI Insurance Company, effective May 22, 2020

On or about May 24, 2021, the Registrar received Complaint 2021-02307 filed by Complainant alleging abandonment of a residential RV gate painting project. Attached to the complaint were copies the parties’ contract, email communications between the parties, and Complainant’s proof of payment(s).

On June 03, 2021, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on June 24, 2021, at 11:30 a.m.

On October 05, 2020, Registrar investigator Stephen Lawton (“Investigator Lawton”) reviewed the contract agreements between the parties, inspected the work that had been done on the projects to date, and took 4 photographs of the project. When he was finished, Investigator Lawton drafted Jobsite Inspection Notes. Ultimately, Investigator Lawton substantiated 1 of Complainant’s 2 complaint items. Specifically, Investigator Lawton found the wrought iron of the fence had not been completed per contract, and was in need of remediation by Respondent.

On July 02, 2021, Investigator Lawton issued a Directive from the Registrar (“Directive”) to Respondent based on the workmanship allegation he substantiated during his jobsite inspection. Respondent was put on notice that he had until 5:00 p.m. on August 02, 2021, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On August 04, 2021, Investigator Lawton escalated Complaint 2021-02307 to the Registrar’s legal department with a Citation Recommendation.

On August 06, 2021, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until August 21, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On August 16, 2021, the Registrar received Respondent’s Answer. Respondent informed the Registrar “effective June 2021 [Respondent] was no longer in business,” as Respondent had been “shut down due to financial and material struggles.” Respondent further advised that it no longer had employees or maintained operations, and was seeking to file bankruptcy and make final arrangements for outstanding debts. Respondent did not address the allegations made in the Registrar’s Citation.

On August 18, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 02, 2020. Per the March 24, 2021, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant called Investigator Lawton as a witness and testified on her own behalf. Respondent failed to appear. The Registrar’s agency file was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns residential property located at 9914 N. 181st Ave. Waddell, AZ 85355.

On or about December 31, 2020, the parties entered into a contract agreement whereby Respondent agreed to paint Complainant’s house and RV gate for the sum total of $3,850.00.

Respondent did not provide Complainant with an itemized breakdown of the project costs, but did confirm that the painting of her RV gate was included in the quoted price.

Complainant paid Respondent $3,450.00 on the project. She received a discount for paying in cash. There is no balance due on the job.

On April 22, 2021, Respondent painted complainant’s home to her satisfaction, and informed her that her RV gate would be painted on April 26, 2021.

Respondent did not return to paint Complainant’s RV gate on April 26, 2021, or issued a pro rata refund for funds Complainant paid on the RV gate portion of the project.

Complainant declined to provide a closing argument.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in the case at bar are not in dispute.

It is undisputed that the parties had a residential painting contract, which Complainant paid in full. It is also undisputed that Respondent did not complete a portion of the project, per contract. It is also undisputed that as a result of Respondent’s poor workmanship, the Registrar issued a Directive that required compliance by August 02, 2021. It is further undisputed that Respondent failed to complete the project or enter into a Settlement Agreement with Complainant prior to the expiration of the Directive’s compliance deadline.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish. As Respondent failed to appear, a factor in aggravation which establishes that the license cannot be regulated by the Registrar, no mitigating evidence on Respondent’s behalf was presented that was sufficient to overcome or rebut the credible evidence of record provided by Complainant.

Because Complainant established violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Triple Lee Painting LLC, ROC License No. 329079, be revoked.

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.

-54864001

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-137160-45720000Done this day, October 25, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000