ALJDEC decisions subject to certification as final
2022A-06060-CHC-ROC · Registrar of Contractors · 2022-12-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Denise Coracides,
COMPLAINANT,
v.
Citrine Residential And Commercial Painting LLC
ROC License No. 329565,
RESPONDENT.
No. 2022A-06060-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 05, 2022 at 1:00 PM.
APPEARANCES: Denise Coracides (“Complainant”) appeared on her own behalf. Jack Grimm appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearances by or on behalf of Citrine Residential And Commercial Painting LLC (“Respondent”). Jorge Coracides observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On July 06, 2020, the Registrar issued License No. 329565 Specialty Dual CR-34 Painting and Wall Covering contracting license to Respondent. The license is in good standing and has been renewed through July 31, 2024. Ashley Ann Gutierrez is listed as the Qualifying Party/Member on the license. Respondent’s address of record for the license is 6439 E. Covina Rd. Mesa, AZ 85205. Respondent has an active $11,250.00 surety bond on the license issued by RLI Insurance Company. The license has not been previously disciplined by the Registrar. There are, however, two (2) open complaints against the license, one of which is presumed to be related to this matter.
On or about July 23, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 329565 alleging abandonment and poor workmanship regarding a kitchen cabinet painting project. The Registrar designated it Complaint No. 2022-06060 and assigned to Jack Grimm (“Investigator Grimm”) for investigation.
On August 01, 2022, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by Investigator Grimm on August 23, 2022, at 10:00 a.m.
On August 22, 2022, Investigator Grimm inspected the work that had been done on the project to date. He also took 30 photographs of the project. When he was finished, Investigator Grimm drafted Jobsite Inspection Notes. Ultimately, Investigator Grimm determined that Complaint No. 2022-06060 contained nine (9) separate and distinct complaint items, of which he substantiated 7. Specifically, Investigator Grimm determined that complaint items 1 and 3- 9 constituted poor or incomplete work, and failed to meet the Registrar’s minimum workmanship standards.
On August 25, 2022, Investigator Grimm issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s workmanship allegation(s) against Respondent.
Respondent was only required to address substantiated complaint items 1, 3-7 and 9, because Complainant performed her own corrective work to complaint item 8.
Respondent was put on notice that it had until 5:00 p.m. on September 12, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22), and 32-1154(E).
On August 26, 2022, Investigator Grimm issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1158(A) for Respondent’s failure to issue Complainant a written contract that included all nine (9) required minimum elements.
On September 20, 2022, Investigator Grimm escalated Complaint No. 2022-06060 to the Registrar’s legal department with citation recommendations for violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22).
On September 21, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until October 06, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155.
On October 05, 2022, the Registrar received Respondent’s timely written Answer. Respondent offered a detailing of post-remedial measures undertaken for future clients, and offered the following explanation for Complainant’s project:
[W]e were a little weary to go into Mrs. Coracides’s home and given the messages she had sent about not waning us to really go in and preform work it had made us nervous. We also were weary about her husband being there as she told us she didn’t want to get her husband involved as he can be nasty, our crews and ourselves did not really know how to interpret that. In the time of all that we decided to overturn our business and let go of a bunch of crews we had who were preforming subpar work (although we were caught off guard that she was not happy with her job as she had stated she was, but of course not everything is caught the day of). It was not until we had the crews that we wanted that we were able to try and coordinate with her. When we were able to it was only 3 working days until our deadline and she did not want our crews working though the week since she and her husband both work corporate jobs understandable but as these were newer crews we did not want them to go in on a weekend so soon. We did however ask for an extension but she denied. As far as the flooring our original insurance never responded and so we switched the new one is stating that flooring issues like that are hard to claim and so they suggested we wait for this to be settled.
(All errors in original.)
On October 07, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on December 05, 2022. Per the October 31, 2022, Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on his own behalf and called Investigator Grimm as a witness. The Registrar’s agency file (“Agency File”), including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 4632 S. Onyx Dr. Chandler, AZ 85249.
On or about May 27, 2022, Complainant contacted Respondent via social media and the parties subsequently entered into a $2,300.00 agreement for Respondent to repaint Complainant’s kitchen island and cabinets. Work on the project commenced the same date and concluded May 28, 2022.
On May 28, 2022, Complainant paid the contract in full.
Respondent moved one or more of Complainant’s kitchen appliances in the course of painting, and incidentally scratched Complainants hardwood floors in multiple locations throughout the kitchen.
On or about September 08, 2022, Respondent contacted Complainant to schedule corrective work for September 12, 2022. Complainant countered that she did not want Respondent to wait until the final day of the Directive to perform corrective work, and asked that work be performed the prior weekend, September 09-11, 2022, to which Respondent declined. As a result, no corrective work was performed.
On September 10, 2022, Respondent asked Investigator Grimm for an extension of the Directive’s compliance period, to which Investigator Grimm asked Respondent to show him they had corrective work scheduled with Complainant after the expiration of the original deadline. Respondent did not reply to Investigator Grimm’s request or submit the requested information.
Closing Arguments
In closing, Complainant argued that the Registrar should make her “whole” by tendering payment sufficient to correct Respondent’s paint deficiencies and fix the damage Respondent caused to her flooring.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108 requires that “a contractor shall perform all work in a professional and workmanlike manner, and that a contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”
Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” It also provides that “[n]o future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”
The material facts in this case are clear.
It is clear from the record that the parties had a painting contract, for which Complainant paid the price in full. It is also clear that Investigator Grimm substantiated underlying complaint items as failing to meet the Registrar’s minimum workmanship standards, and that Respondent failed to perform corrective work in compliance with the Registrar’s Directive in violation of Ariz. Rev. Stat. §§ 32-1154(A)(3) and (A)(22).
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent has failed to sustain its burden. The Tribunal is not at liberty to make presumptions in favor of Respondent or accept facts in mitigation on behalf of Respondent that are not supported by the evidence. Respondent’s absence from this administrative proceeding is, however, a factor in aggravation. The evidentiary record in this matter reflects that Respondent failed to complete the underlying project at issue, fix the damage it caused over the course of the project, and never returned Complainant’s payment; in whole or in part, and had no affirmative defense(s) for doing so.
Thusly, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Citrine Residential And Commercial Painting LLC, ROC License No. 329565, be suspended for five (5) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).
IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $100.00 (one hundred) in certified funds as a civil penalty in this matter.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Final Order, the Registrar shall 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 Ariz. Rev. Stat. § 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.
Done this day, December 07, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Citrine Residential And Commercial Painting LLC, Respondent
6439 E. Covina Rd.
Mesa, AZ 85205
[email redacted]
Denise Coracides, Complainant
4632 S. Onyx Dr.
Chandler, AZ 85249
[email redacted]
By Miranda Alvarez
Legal Secretary