ALJDEC decisions subject to certification as final

2021A-04612-CHC-ROC · Registrar of Contractors · 2022-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maureen Steffes Sollars,

COMPLAINANT

Travis Painting LLC

License No. ROC 266056,

RESPONDENT

No. 2021A-04612-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 28, 2021

APPEARANCES: Complainant Maureen Steffes Sollars appeared on her own behalf. Travis MacDuff, Owner and Qualifying Party, appeared on behalf of Respondent Travis Painting LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Travis Painting LLC (Respondent) is the holder of License No. 266056 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 6, 2021, Maureen Steffes Sollars (Complainant) signed a contract with Respondent in which Respondent agreed to “paint ceilings in common areas plus half bath” for a total contract price of $1100.00.

On or about Thursday, September 9, 2021, Mr. MacDuff began working on the project without any other workers present. Throughout the day, Mr. MacDuff felt Complainant was criticizing his work and questioning his methods. Further, the parties discovered that they had a different understanding of the scope of the work. According to Mr. MacDuff, the contract was for a single coat of paint because the contract would have specified “two coats” if that was Respondent’s intention. Complainant, however, understood that the paint would cover the existing color on the ceiling. During the afternoon, Mr. MacDuff got frustrated enough that he made a comment to Complainant that he was leaving the project, would not finish the job, and expected payment for the work performed.

Later that evening, Mr. MacDuff texted Complainant as follows:

Hi guys. First I want to apologize. There seams to be a lack of or difficulty of communication. So here’s where I am at with your job.

When I realized we would not be able to finish your job today I asked could we come back. I got no answer on when.

When we talked about how the ceiling covered I remember explaining to you when I bid the job but it may not cover in one coat. My price did not include a second coat.

If you do the math we put in 14 hours and $200 worth of material already. We usually make the contract price daily. I was willing to finish this coat due to my estimating error.

It Will take me five or so hours to finish the first coat and then at least another day to apply second if it need It. This financially does not make sense. And would hurt my schedule further.

Here are the options:

we call it quits and you give me what you want fir the work we did. I still have to pay Mandy after buying 200 materials.

I come back and finish this coat as planned. You pay the amount agreed upon. I will touch up edges as previously discussed.

If you want/it needs a second coat you will have to pay for it.

I’m sorry for all the confusion.

All errors in original.

Complainant did not respond to the text.

On or about Monday, September 13, 2021, at 11:31 a.m., Mr. MacDuff texted Complainant as follows:

Good morning. Being you chose to not respond. As a business we lien all property for non payment . You will receive a property lien notice this week. At which time by law all my costs to apply the lien and any other court costs will be your responsibility. We did more than half the agreed work and would have expected you to pay for it. I am only leaning the property fir the 450 which with the deposit makes half the contract. Unless you sent the 450 this will be filed and the costs will go to you as well.

All errors in original.

On or about September 16, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and “change in terms” with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg.

On or about September 21, 2021, Investigator Fagerburg notified Respondent that a formal complaint had been filed by Complainant against Respondent and setting a jobsite inspection at October 15, 2021.

On or about September 21, 2021, Mr. MacDuff texted Complainant as follows:

I am formally requesting I get an inspection of the work done. As per ROC procedure. It would also be helpful if you were to tell me what you are trying to get out of this.

Complainant offered that Respondent could come inspect the project between 9:00 a.m. and 10:00 a.m. on September 28, 2021; between 4:30 p.m. and 5:00 p.m. on September 30, 2021; and between 3:30 p.m. and 4:00 p.m. on October 4, 2021.

Because Mr. MacDuff was working on other projects during the limited timeframes provided by Complainant, he was unable to inspect the project within 15 days of being notified of the complaint.

On October 15, 2021, Complainant would not allow Mr. MacDuff into the home to attend the jobsite inspection.

After the jobsite inspection, Investigator Fagerburg issued a written directive 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 Tuesday November 9, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliant Item 5: MacDuff showed Maureen greatroom ceiling work and unfinished trim Told Maureen that if wanted full coverage would have to pay for second coat and negotiate the price MacDuff later states in text had an estimating error. Did not state this during exchange w/ Maureen

Investigator’s Observation: The respondent is to complete the project per written contract.

Governing Rule: ARS §32-1154 (A)(3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 6: Maureen suggested Scott and MacDuff speak in 15 minutes to discuss. MacDuff refused and said would pack up and leave before 15 minutes and did not want to talk to Scott. At this time (2:45) he said- "I quit job so pay me for work done. Im not finishing." Maureen asked not to quit repeatedly and to return tomorrow. He ignored by not responding packing and slammed door in her face on way out

Investigator’s Observation: I observed and am able to verify that the painting project is not complete per written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 9b: Led us to writing a report to the ROC. #2 Contracted job incomplete.

Investigator’s Observation: I observed and am able to verify that the painting project is not complete per the written contract.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 9d: Led us to writing a report to the ROC. #4 Travis MacDuff quit walked out on job.

Investigator’s Observation: The respondent acknowledged that the painting project is not complete.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

All errors in original.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Fagerburg was notified no corrective work had been performed.

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).

Investigator Fagerburg testified that he did not conduct any compliance or prehearing jobsite inspections because the parties agreed that no further work had been done after the written directive had been issued.

Complainant denied that she fired Respondent from the project, but asserted that Mr. MacDuff had quit the project on September 9, 2021, when he walked off the job. Complainant did not understand that Mr. MacDuff’s text that evening was an effort to reach an understanding with Complainant regarding the project to either schedule the completion of or mutually walk away from the project. Complainant indicated that she interpreted Mr. MacDuff’s September 13, 2021 text explaining his intent to file a lien as a “threat” to her. Complainant stated that after Mr. MacDuff issued his “threat” she was unwilling to respond to him and decided to file the complaint on September 21, 2021. Complainant did not offer any credible explanation for her failure to respond to the September 9, 2021 text at any point between Thursday night and Monday morning. As to Mr. MacDuff’s request to inspect the project after being notified of the complaint, Complainant stated that the homeowners association’s rules applicable to her home did not allow construction workers to be in the gated community outside the hours of 8:00 a.m. and 5:00 p.m. on weekdays.

Mr. MacDuff testified that he had been in business for many years and asserted that unless he specifically identified the number of coats of paint in the contract, the default was that one coat of paint would be provided. Mr. MacDuff admitted that he was frustrated with Complainant on September 9, 2021, while he was working on the project and he said some things to her in the heat of the moment. Mr. MacDuff testified that his text that evening was sent in an effort to complete the project or reach a mutually agreeable resolution of the disagreement between the parties. Mr. MacDuff denied that his text message regarding a lien was a threat, but was a notification to Complainant of his intention to exercise his legal rights to seek payment. Mr. MacDuff stated that he personally knew people who live in the same community as Complainant and that the rules she referenced only limit the times that work could be performed, not that they preclude contractors to be in the community outside of those hours. Mr. MacDuff indicated that he regularly went into the community in his unmarked vehicle during off hours to provide quotes to potential customers. Mr. MacDuff maintained that he was unable to get away from other projects in the limited timeframes that Complainant offered for his inspection.

Administrative notice is taken of Respondent’s prior License record on February 16, 2022. Such prior License record reflects that Respondent’s License No. 266056 was first issued on June 23, 2010, and was active. Such prior License record also reflects that there were no other open or prior 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).

A.R.S. § 32-1155 provides, in pertinent part, as follows:

D. The registrar may not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:

1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.

The evidence presented at the hearing established that Mr. MacDuff requested an opportunity to inspect the work the day Respondent was notified of the complaint. Further, Complainant provided Mr. MacDuff with just three extremely limited windows of time to allow Mr. MacDuff to inspect the project. Such limited options provided by Complainant effectively constituted a denial of an opportunity to inspect the work.

Accordingly, pursuant to A.R.S. § 32-1155(D)(1), the Registrar should not have issued the citation in this matter and no discipline should be imposed against Respondent for the alleged violations.

Alternatively, it was uncontroverted that Respondent had not completed the project at the time that Complainant filed the complaint in this matter. While Mr. MacDuff did not have time to complete the project on September 9, 2021, and left the job unfinished that day, he attempted to communicate with Complainant that same day to arrange a future date to return to the project to complete the work he understood to be the scope of the contract or to reach an agreement releasing the parties from the contract. Appellant’s lack of response to any of Mr. MacDuff’s texts from September 9, 2021, through September 16, 2021, could reasonably be considered her cancellation of the contract.

Because Complainant cancelled the contract through her refusal to respond to Respondent’s text messages, no discipline should be imposed against Respondent for the alleged violations.

Alternatively, if Respondent had been given a meaningful opportunity to inspect the work within 15 days of being notified of the complaint and Complainant did not effectively cancel the contract by her refusal to respond to Respondent’s texts, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. It was uncontroverted that Respondent did not complete the project under either interpretation of the contract, one coat of paint or two. 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).

Similarly, the evidence established that Respondent did not attempt to complete the corrective work following the 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 Registrar’s final order in this matter, the Registrar close Complainant Maureen Steffes Sollars’ complaint in Case No. 2021-04612 against Respondent Travis Painting LLC’s License No. 266056 based on Complainant’s failure to provide Respondent access to inspect the work within 15 days of being notified of the complaint.

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, February 17, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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