ALJDEC decisions subject to certification as final
2022A-02126-CHC-ROC · Registrar of Contractors · 2022-09-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Martha E Kohr ,
COMPLAINANT
v.
Jean Johnston
License No. ROC 173434,
RESPONDENT
No. 2022A-02126-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: September 7, 2022
APPEARANCES: Martha E. Kohr on her own behalf; Jean Johnston for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On June 30, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above captioned matter for hearing on August 4, 2022 at the Office of Administrative Hearings. The matter was rescheduled and the hearing was conducted on September 7, 2022.
Through its Notice of Hearing, ROC alleges that Respondent Jean Johnston may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). Respondent holds license No. 173434 issued by ROC.
Ms. Johnston appeared and testified for Respondent, who also presented the testimony of her son Charles Johnston.
Complainant is Martha E. Kohr, who appeared and testified.
ROC investigator Wes Ellington also testified.
On or about April 14, 2020, Complainant hired Respondent to paint a house and guest house. The work was completed on or about April 21, 2020. Ms. Kohr paid Respondent the entire contract price of $3600.00.
On or about March 15, 2022 Complainant filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.
ROC investigator Mr. Ellington conducted a jobsite inspection on April 22, 2022.
On May 2, 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 May 20, 2022.
***
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1. All doors are gritty and some peeling. They were painted over a dirty surface.
Investigator’s Observation: Verified. The doors were clearly not properly prepared for paint. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 2. Product applied over the foundation of guest house is now peeling off in pieces. Even before the job was completed, I pulled an 18 inch piece of foundation product off the foundation at which time he did that that repair.
Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 3. Both ceilings had a product applied, then paint was applied; product and paint are falling down in places.
Investigator’s Observation: Verified. The area was not properly prepared for paint. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 4. Some window trims were painted over the masking tape.
Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 5. Every window has peeling paint.
Investigator’s Observation: Verified. The area was not properly prepared for paint. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 6. Peeling paint on all exterior walls of both dwellings. Can tear the paint off in some locations.
Investigator’s Observation: Verified. The area was not properly prepared for paint and is peeling from multiple areas on most every part of the exterior. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 7. Product applied, then painted to fix exterior doors is coming off of doors and also the trim around the doors.
Investigator’s Observation: Verified. This is a very poor repair job and does not meet industry standards. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item: 8. Painted pillars have peeling paint on the back patio.
Investigator’s Observation: Verified. The area was not properly prepared for paint. The Respondent will need to correct this by the appropriate means. Poor work not performed in accordance with professional industry standards.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item: 9. Faux sealant has flaked pieces (peeling).
Investigator’s Observation: Unable to verify. No flaking of product could be seen. Insufficient evidence to prove poor workmanship.
Governing Rule: N/A
Mr. Ellington conducted a compliance jobsite inspection on June 3, 2022 at which time he determined that Respondent had attempted to make repairs, but had not properly corrected any of the eight compliance items that ROC ordered Respondent to correct.
Mr. Ellington testified to the effect that the effect that the deficiencies he observed were in multiple areas and are shown in the photographs he took. He also testified to the effect that the peeling paint he observed is typically the result of poor prep work and perhaps issues related to the priming.
ROC issued to Respondent a Citation dated June 7, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Ms. Kohr testified to the effect that the peeling paint had gotten worse since Mr. Ellington conducted his inspections.
Mr. Johnston testified as to Respondent’s willingness to correct any deficiencies and as to Respondent’s willingness to pay another contractor to perform that work.
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.
*****
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.”
The preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A) as set out in ROC’s Directive, which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).
The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive in the time allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
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 32-1156.01 provides that an administrative law judge may recommend that a contractor be ordered to pay restitution to a person injured by that contractor. See also Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437 (App. 1990).
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, Respondent’s license should be suspended until she pays Ms. Kohr restitution in the amount of $3600 and Respondent should be assessed a civil penalty of $250.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Jean Johnston’s license No. 173434 until it receives proof that she has paid to Ms. Kohr restitution in the amount of $3600;
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.
-54864001
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-137160-45720000Done this day, September 7, 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