ALJDEC decisions subject to certification as final

2022A-02560-CHC-ROC · Registrar of Contractors · 2022-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maureen O'Neil,

COMPLAINANT

Borges Painting LLC,

License No. ROC 334796,

RESPONDENT

No. 2022A-02560-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 19, 2022

APPEARANCES: Complainant Maureen O’Neil appeared on her own behalf. Gabriel Borges, Owner and Qualifying Party, appeared on behalf of Respondent Borges Painting LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Borges Painting LLC (Respondent) is the holder of License No. 334796 issued by the Arizona Registrar of Contractors (Registrar) on September 16, 2021.

On or about May 1, 2021, Maureen O’Neil (Complainant) received an estimate from Respondent for a “Complete Interior Repaint” and an “Exterior paint job Two Tone.” The estimate, which became the contract, did not have Respondent’s license number, an estimated date of completion, a schedule of progress payments to be made, or an advisement that Complainant had the right to file a complaint with the Registrar.

On or about March 30, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. On or about May 11, 2022, after a jobsite inspection, Investigator Fagerberg 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 Thursday June 2, 2022.

. . . .

• Investigator Notes:

1: Per the contract scope of work description provided by the respondent to the complainant and submitted by the complainant. Complete interior repaint, all walls, all ceilings, baseboards and doors, closets, primer fresh drywall (vinylastic plus) Dunn Edwards premium interior paint (spartawall). 3 to 4 days labor. Exterior paint job Two Tone. Two tone paint job, pressure wash, stucco patch minor cracks and holes, 15-20 gallons of Dunn Edwards paint. 2 days labor. Fascia board repair replace with new wood pieces in certain areas that need replacement.

2: The respondent is in violation of Workmanship Rule: ARS §32-1158 (A)

Minimum elements of a contract.

DIRECTIVE REQUIREMENTS

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

Compliant Item 2: Majority of the house – they did not use silicone to connect wall and ceiling. Wall Paint on ceiling due to no use of silicone/caulking

Investigator’s Observation: The respondent is to correct the wall paint on the ceiling throughout the interior of the home by appropriate means.

. . . .

Compliant Item 3: Master Bath – Paint tape removed paint from walls – no primer used

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 4: Did not sand moldings as promised.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 5: Bad paint job – Master Bath

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 6: Master Bath – Wall under the vanity / cabinet not painted

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 8: Master Bedroom Most Mouldings Around Doors not sanded properly – Bad paint job

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 9: Kitchen / Living Room Back Wall – Mouldings and doors not sanded properly – Bad Paint job

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 10: Front Door Area – Paint Peeled indicating no primer used

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 11: Front Door Area – Mouldings NOT Painted, others poorly painted

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

. . . .

Compliant Item 12: Exterior Paint Front of house – Paint on the window frames.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 14: Facia Board not replaced or repaired

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

. . . .

Compliant Item 15: No caulking around the windows, corners, cracks, light fixture

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 16: East side patio spray over gutter with wrong paint, no paint on metal unfinished

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

. . . .

Compliant Item 17: Did not paint walls inside dog door

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

. . . .

Compliant Item 19: Back of house – Living Room, kitchen, bedroom doors Paint missing

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

Compliant Item 20: Back of house – All doors very poorly done peeling and paint on hardware

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

. . . .

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(A); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Fagerberg testified as to his observations of the project and the workmanship issues he noted during the jobsite inspection. Investigator Fagerberg also stated that he performed a prehearing inspection on August 7, 2022, and nothing on the project had been altered.

Complainant testified that after the written directive was issued, she received a call from Mr. Borges. Complainant advised Mr. Borges that she wanted to resolve the matter, but Mr. Borges never responded.

Mr. Borges denied leaving Complainant’s home in the condition demonstrated in the photographs from the jobsite inspection.

Administrative notice is taken of Respondent’s prior License record on September 8, 2022. Such prior License record reflects that Respondent’s License No. 334796 was first issued on September 16, 2021, 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 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 Vazzano 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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

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 Order, the Registrar shall suspend Respondent’s License No. 334796 for a period of three days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, September 8, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000