ALJDEC decisions subject to certification as final

2022A-06515-CHC-ROC · Registrar of Contractors · 2023-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chad Ray Jenkins,

COMPLAINANT,

Citrine Residential and

Commercial Painting, LLC

License No. ROC 329565,

RESPONDENT

No. 2022A-06515-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 18, 2023

APPEARANCES: Complainant Chad Jenkins appeared on his own behalf with his wife, Tiffany Jenkins. Arizona Registrar of Contractors Investigator Jack Grimm was present. Respondent Citrine Residential and Commercial Painting, LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Citrine Residential and Commercial Painting, LLC (“Respondent”) is the holder of License No. 329565, a Specialty Dual CR-34 Painting and Wall Covering license, issued by the Arizona Registrar of Contractors (“Registrar”).

On or about July 6, 2022, Chad Jenkins (“Complainant”) contracted with Respondent for Respondent to install laminate flooring and baseboards, replace door trim on seventeen doors, and caulk and paint at Complainant’s home. The contract price was $10.900.00. Complainant paid Respondent a total of $5,700.00 toward the contract price.

On or about August 5, 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 Jack Grimm. Investigator Grimm conducted a Jobsite Inspection on September 21, 2022, at which Respondent was not present. Investigator Grimm’s Jobsite Inspection Notes indicate the following in pertinent part:

No one was present representing Citrine Residential and Commercial Paint LLC. The work performed and outlined in the invoice/proposal regarding the flooring and door trim installation is out of scope of the painting license and warning letters were issued regarding out of scope work. 32-1154(A)(16).

Contract does not meet elements of a contract and a warning letter was issued. 32-1158(A)

Investigator Grimm issued a Written Directive to Respondent dated September 23, 2022, 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 October 10, 2022.

. . . .

You may not perform or hire other contractors to perform work that is outside the scope of your license.

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

Complaint Item #2: Cuts on base boards are not good.

Investigators Observation: Baseboard work was corrected by others hired by the homeowner. The work as outlined in the proposal/contract also states “replace door trim 17 doors” as well and this work is out of scope for a CR-34 Painting and wall covering license. Work is poor as well with poor mitered cuts that do not lay flush and reveal alignment (casing to door jams) is irregular and out of alignment. With some being flush and other showing irregular reveal.

*Correct door casings for poor miters and irregular fit.

NOTE: This work is out of scope of the painting license.

Complaint Item #3: Painting of baseboards unacceptable/they have tried to fix/touch up 4 times still can't get it right.

Investigators Observation: The baseboards have been removed and replaced by others hired by the homeowner. The door casings were also installed and painted by the respondent and has poor paint coverage with many filled nail hole locations showing with poor paint coverage.

*Correct painted locations on casing that had poor prep and paint coverage.

Complaint Item #4: Laid the laminate floor over the old tiles as the sub floor and did not prep the sub floor.

Investigators Observation: Flooring work was corrected by others hired by the homeowner. Contract/proposal states “laminate install”.

*All work regarding the contract for flooring installation is out of scope of the

respondents painting license. Respondents flooring work has been removed by others.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item #1: Very hard to communicate as most of the workers did not speak English very well.

Investigators Observation: Unable to address. Not a workmanship issue.

Complaint Item #5: I told Jesse before we started are you sure we do not need to fill in the grout lines and or tiles before we start he said no this is why we are using thicker padding, so I returned the original padding and he replaced it with their padding of choice.

Investigators Observation: Flooring work was corrected by others hired by the homeowner.

Complaint Item #6: Seems like the installers did not know what they were doing from the very beginning, I questioned this with Jesse and he stated they were his best guys.

Investigators Observation: Flooring work was corrected by others hired by the homeowner. Finish carpentry trim work addressed in complaint #2.

Complaint Item #7: caulking/foam/silicone they used trying to fix floor gaps spread all over laminate and not coming off.

Investigators Observation: Flooring work was corrected by others hired by the homeowner.

Complaint Item #8: Used foam and drilled holes in flooring to try to fix gaps which is expanding and creating more gaps and lifted flooring.

Investigators Observation: Flooring work was corrected by others hired by the homeowner.

Following the expiration of the time period for compliance with the Written Directive, on October 24, 2022, Investigator Grimm received an email from Complainant informing him that Respondent made no contact with Complainant and did not perform any corrective work or otherwise resolve the matter. Consequently, Investigator Grimm did not conduct a Compliance Inspection or a prehearing inspection.

Thereafter, Investigator Grimm forwarded the matter to the Registrar’s Legal Department. 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, A.R.S. § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing was scheduled to convene on January 18, 2023, at 1:00 p.m. On the date and at the time set for hearing, Complainant appeared on his own behalf with his wife, Tiffany Jenkins. Investigator Grimm was present. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Grimm testified consistently with his findings contained in the Written Directive and the Jobsite Inspection Notes. Investigator Grimm testified that Respondent did not provide a written contract to Complainant for the painting portion of the work, and only provided an invoice for the flooring work which was out of scope. Investigator Grimm further testified that although Respondent cannot perform all of the scope of work required by the Written Directive due to Respondent’s license classification, Respondent could have resolved the matter financially with Complainant. Investigator Grimm testified that he has had no contact with Respondent throughout the Complaint process.

Complainant agreed with Investigator Grimm’s testimony, and testified that he is “out a lot of money.”

Administrative notice is taken of Respondent’s prior License record on January 30, 2023. Such prior License record reflects that Respondent’s License No. 329565 was first issued on July 6, 2020, and was suspended effective January 26, 2023. Such prior License record also reflects that there are three open complaints, no resolved/settled complaints, and one case resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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 did not provide a written contract for the painting portion of the project to Complainant. Therefore, Complainant 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 knowingly contracted beyond the scope of its Specialty Dual CR-34 Painting and Wall Covering license when it contracted to install flooring and associated work. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(16).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued or otherwise resolve the matter with Complainant. Therefore, Complainant established that Respondent failed to take appropriate corrective action without valid justification, 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. 329565 for a period of ten (10) days.

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 (30) 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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 its contracts include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that its contracts are in compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, January 31, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

[email redacted]

Citrine Residential and Commercial Painting, LLC

[email redacted]

Chad Ray Jenkins

[email redacted]

Jack Grimm

[email redacted]

By: OAH Staff

-54864001

001

-137160-45720000