ALJDEC decisions subject to certification as final
2021A-05314-CHC-ROC · Registrar of Contractors · 2022-05-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Susan Shumaker,
COMPLAINANT,
v.
D L W Painting, Inc.
License No. ROC 147144,
RESPONDENT.
No. 2021A-05314-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 18, 2022
APPEARANCES: Complainant Susan Shumaker appeared on behalf of herself. Dean Walker appeared on behalf of Respondent D L W Painting, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent D L W Painting, Inc. (D L W) holds license number 147144 issued by the Arizona Registrar of Contractors (ROC).
2. Dean Walker is the qualifying party for D L W.
3. Complainant Susan Shumaker owns property located at 4114 E. Union Hills Dr. #1222, Phoenix, Arizona 85050.
4. Ms. Shumaker is a member of a home owners association (HOA).
5. The HOA hired D L W to replace Ms. Shumaker’s exterior door.
6. On or about August 20, 2021, D L W performed work at Ms. Shumaker’s home. D L W’s license was suspended at the time that he performed work.
7. On or about October 20, 2021, Ms. Shumaker filed a complaint with the ROC alleging poor workmanship on the part of D L W. Ms. Shumaker alleged that D L performing work at her home while its license was suspended.
8. On December 10, 2021, ROC Investigator Steve Klein conducted a job-site inspection. Investigator Klein verified that D L W’s license was suspended and that D L W was a painting contractor. The door installation required specialized carpentry work.
9. On December 13, 2021, the ROC issued a Directive to D W L that provided, in relevant part, 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 January 3, 2022.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint #1 Painting contractor attempted to perform specialized carpentry work (frame/door/trim--requires skilled professional carpenter or door specialist) under incorrect license type & suspended license (see below--verified info with two investigators & confirmed not working under any other license(s)...)....
Inspector’s Observation: Verified the Respondent was working out of scope of the license and is also suspended.
Inspector addressing issues by sending appropriate letters.
Complaint #2 Several emails rec'd during August 2021--(08.04.21 thru 09.27.21)-- from company em addr: dean walker ....obviously conducting business & still operating entity with suspended license....
Inspector’s Observation: Verified the Respondent was working out of scope of the license and is also suspended.
Inspector addressing issues by sending appropriate letters.
Complaint #7 . Door frame issues ignored, failed evaluate & repair/modify or retrofit frame to properly house door....& prior to removing preexisting exterior door ....Large gaps/space still exist/showing between the door opening & frame, same problems as with preexisting door
Inspector’s Observation: I verified the door reveal is inconsistent, hardware is loose and the job is incomplete.
Respondent shall complete project per original contract agreement, specifications, properly executed change orders, and manufacturer’s installation instructions.
Complaint #8 New door is full of scratches (damage) literally all over the surface--yet was only transported two miles from Home Depot to my residence (damages show on exterior which is actually the interior due to incorrect installation)
Inspector’s Observation: My opinion is the scratches are minimal and will cover with painting. If the scratches show through the paint, then they should be addressed.
Respondent shall complete project per original contract agreement, specifications, properly executed change orders, and manufacturer’s installation instructions.
Complaint #10 New door now contains step plate--located inside space due to improper installation....Plate is loose, extends into space/slab after enter doorway-- causing safety issues--a serious tripping hazard that never existed with preexisting door (step plate is to "step in to door" not trip on after already inside)
Inspector’s Observation: The threshold is loose in the center.
The Respondent should correct by the appropriate means
Complaint #11 Failed to replace 30+ yr old, deteriorated, warped, trim surrounding door that's rotting, full of holes--as requested & approved as part of approved scope of project (& standard with new door replacement)....Original old deteriorated trim full of holes & old nails--some exposed & popped OUT causing more issues Original trim is gapped/pulled off from the building--so far that you can fit your fingers in between the spaces/gaps....
Inspector’s Observation: The contract was between the Respondent and the HOA.
Respondent shall complete project per original contract agreement, specifications, properly executed change orders, and manufacturer’s installation instructions.
Complaint #12 Original wood trim pieces surrounding door still don't fit tightly together properly--laborer used tons of caulking to attempt to remedy issue (instead of replacing all old wood trim) & failed to correctly fit it together properly around door & fit it snug to building with NO GAPS...(not fill it with endless amts of caulking with many nails showing in between the large gapped space from reuse of old rotted trim)....
Inspector’s Observation: At the time of inspection I was unable to determine if the trim was in the contract to replace, or if the Respondent was supposed to reinstall the existing trim.
Respondent shall complete project per original contract agreement, specifications, properly executed change orders, and manufacturer’s installation instructions.
Complaint #13 . New Door hardware that was installed is loose & wobbly--including plate in frame & door handle--neither tightly screwed in properly--should be tightly secured as it is a locking door handle....
Inspector’s Observation: I verified the door reveal is inconsistent, hardware is loose and the job is incomplete.
Respondent shall complete project per original contract agreement, specifications, properly executed change orders, and manufacturer’s installation instructions.
Complaint #14 Lock latch still exposed in gap/space where door opens--security concern--latch should not be visible with proper fit & secured door (again, same issue with preexisting door)--still not rectified as frame was never addressed or properly corrected prior to door being replaced....
Inspector’s Observation: I verified the door reveal is inconsistent, hardware is loose and the job is incomplete. •
Respondent shall complete project per original contract agreement, specifications, properly executed change orders, and manufacturer’s installation instructions.
Complaint #22 Now unable to easily remove large & heavy items or add items into space due to new threshold obstruction blocking entrance/exit of doorway & loose step plate inside small space--tripping safety hazard
Inspector’s Observation: The door is an exterior metal door that came with a threshold from the manufacture. I am unable to direct the Respondent to remove the threshold because the HOA representative said the work was completed per the contract agreement between the HOA and the Respondent.
The threshold should not be loose in the center.
......................................
10. D W L did not comply with the Directive by January 3, 2022.
11. On February 9, 2022, the ROC issued a Citation against D W L for alleged violations of Arizona Revised Statutes (A.R.S.) sections 32-1154(A)(3), (17), and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A).
12. D W L filed a timely answer to the Citation.
13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
14. A hearing was held on May 18, 2022.
15. At hearing, Ms. Shumaker testified on behalf of herself. D W L presented the testimony of Mr. Walker and the HOA President, Joelle Lever. Investigator Klein testified regarding his investigation of the complaint and the issuance of the Directive.
16. Ms. Shumaker explained that Mr. Walker performed poor work when he installed a door at her home. Mr. Walker did not dispute that he performed construction work while D W L’s license was suspended. Mr. Walker asserted that he believed that the work was permitted under the handyman exemption.
17. Ms. Lever expressed that the HOA does not have a problem with
Mr. Walker’s work. Ms. Lever explained that the HOA is attempting to resolve the matter with Ms. Shumaker. Ms. Lever explained that the HOA paid D W L approximately $575 to $675 dollars to install a new door at Ms. Shumaker’s home.
18. Administrative notice is taken of Respondent’s prior License record on May 31, 2022. Such prior License record reflects that Respondent’s license number 147144
was first issued on July 22, 1999, and is 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 ROC’s jurisdiction. See A.R.S. section 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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).
4. The Administrative Law Judge may consider the ROC’s administrative record. See A.A.C. R4-9-118.
5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of A.R.S. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The preponderance of the evidence shows that Respondent performed work outside of the scope of its license, which is a violation of A.R.S. section 32-1154(A)(17).
7. The preponderance of the evidence shows that Respondent had valid justification for failing to comply with the Directive because Respondent’s license was suspended and the corrective work was outside of the scope of Respondent’s license. Additionally, it would not have been appropriate for Respondent to enter into a financial settlement with Complainant because the contract was between Respondent and the HOA. The preponderance of the evidence does not show that Respondent violated A.R.S. section 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 license number 147144 issued to D W L Painting for three days.
Done this day, May 31, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary