ALJDEC decisions subject to certification as final

2022A-00952-CHC-ROC · Registrar of Contractors · 2022-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shannon Mulhern,

COMPLAINANT

New Era Painting And Coatings LLC

License No. ROC 315593,

RESPONDENT

No. 2022A-00952-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 2, 2022

APPEARANCES: Shannon Mulhern on her own behalf; Ruben Gomez for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 29, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 2, 2022.

Through its Notice of Hearing, ROC alleges that Respondent New Era Painting and Coatings LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22).

Respondent holds license No. 315593 issued by ROC. Respondent’s owner and qualifying party Ruben Gomez appeared and testified for Respondent.

Complainant Shannon Mulhern appeared and testified, and she presented the testimony of her husband Chris Conti. ROC investigator John Smith also testified.

In December 2021, Complainant and Respondent entered a contract that called for Respondent to paint the outside of Complainant’s house and a block wall.

The contract price was $3050, which was paid in full.

The work was completed on or about December 15, 2021. By about December 28, 2021, paint was peeling from the house.

Complainant contacted Respondent regarding the peeling paint, but Respondent was not responsive.

On February 3, 2022 Complainant filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.

ROC investigator Mr. Smith conducted a jobsite inspection on February 18, 2022.

On February 18, 2022, ROC issued to Respondent a Directive that provided in part:

*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 7, 2022.

***

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Paint is peeling and separating off the house and surrounding walls prep work was not completed properly which is causing the paint to peel off the walls”

Investigator’s Observations: Verified.

There are numerous areas of peeling paint on the exterior of the house and on the block yard walls. There are numerous areas of air voids behind the paint, where the paint is not adhering to the walls.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Warning Letter: Elements of a Contract.

Investigator’s Observations: The respondent’s contract is missing the following information:

• The contractor’s ROC number

• The date the parties entered into the contract

• An estimated date of completion

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

• A signature of the property owner

• A signature of the contractor

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

***

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “we had asked for Dunn Edwards paint and we were given Home Depot Pro Series with a Dunn Edwards color”

Investigator’s Observations: This allegation is NOT verified as a violation of A.R.S. § 32-1154(A). The contract does not specify a brand of paint.

Governing Rule: N/A

On March 2, 2022, Respondent contacted Mr. Smith by email, informing him that he planned to contact the Complainant that day to schedule the work ROC ordered Respondent to complete and asking for an extension of time to complete the work.

Mr. Smith informed Respondent that ROC would not extend a compliance deadline unless a respondent showed a good faith effort, and that he did not believe that Respondent had been showing a good faith effort because Respondent had not answered the complaint, it did not attend the jobsite inspection, and had not contacted ROC prior to March 2, 2022.

Respondent did not contact Complainant until March 7, 2022, at which time Respondent informed her that he could have workers on the job by 1:00 p.m., but Respondent would not be able to complete the work by 5:00 p.m. that day.

Complainant indicated that she was unwilling to agree to any extension of ROC’s deadline because she did not believe Respondent had made a good faith effort to comply. No corrective work was performed at the house.

ROC issued to Respondent a Citation dated March 10, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22).

On April 27, 2022, Mr. Smith conducted a prehearing inspection at which time he observed that the peeling paint on the house and the block wall was worse than it had been during his jobsite inspection.

Mr. Smith testified that the painting work did not meet the workmanship standards.

Considering that the condition was getting worse over time, Mr. Smith’s opinion was that the house and block wall would have to be stripped and repainted.

Complainant had entered into evidence a March 9, 2022 estimate from another contractor showing that the house is “chalky” and that it would use a sealant to to help ensure proper adhesion of any paint it applied.

At the hearing, Mr. Gomez testified as to Respondent’s willingness to repair any deficient work, including scraping and power washing as required.

Ms. Mulhern testified to the effect that she had no confidence in Respondent and that she was not willing to allow Respondent to make the required repairs, but rather she was looking for restitution.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*****

3. Violation of any rule adopted by the registrar.

*****

12. Failure in any material respect to comply with this chapter.

*****

22. Failure to take appropriate corrective action to comply with this chapter or with 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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. section 32-1158 sets out the minimum elements of any contract for more than $1000 entered into between a contractor and the owner of a property.

Respondent’s work does not meet the workmanship standards because the paint is peeling. Consequently, the preponderance of the evidence shows that Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1158 because its contract did not include the required elements, which is also a violation of section 32-1154(A)(12).

The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) because it did not comply with ROC’s Directive within the time ordered.

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Considering the facts of this matter, ROC should suspend Respondent’s license until Respondent pays to Complainant restitution in the amount of $3050. See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990)(ROC may order a party to pay restitution as a condition to the reinstatement of a suspended license.).

Respondent should also be assessed a civil penalty of $250 for its violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent New Era Painting and Coatings LLC’s license number 315593 until Respondent pays to Complainant restitution in the amount of $3050;

IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess against Respondent a civil penalty of $250.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, May 10, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary