ALJDEC - Licensing

2022A-08264-CHC-ROC · Registrar of Contractors · 2023-02-27

7IN THE OFFICE OF ADMINISTRATIVE HEARINGS

LaDonna Clark,

COMPLAINANT,

v.

Desert Home Painting LLC

ROC License No. 328279,

RESPONDENT.

No. 2022A-08264-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 17, 2023 at 1:00 PM.

APPEARANCES: LaDonna Clark (“Complainant”) appeared on her own behalf. Armando Estrada Renteria appeared on behalf of Desert Home Painting LLC (“Respondent”). Daniel Edwards appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Alexander Clark 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 March 26, 20200, the Registrar issued License No. 328279 Specialty Dual CR-34 Painting and Wall Covering contracting license to Respondent. The license is in good standing and has been renewed through March 31, 2024. Armando Estrada Renteria is listed as the Qualifying Party/Manager on the license, along with his father Armando Estrada Cardenas who is also listed as a Manager. Respondent’s address of record for the license is 7528 W. Turney Ave. Phoenix, AZ 85033. Respondent has an active $6,750.00 surety bond on the license issued by Old Republic Surety Company, effective March 03, 2020. The license has no prior disciplinary record with the Registrar. There is one (1) open complaint against the license, which is presumed to be related to this matter.

On September 20, 2022, the Registrar received a 12-item complaint from Complainant against Respondent’s License No. 328279 alleging poor workmanship regarding a $5,800.00 residential paint and drywall project. The Registrar designated it Complaint No. 2022-08264 and assigned to Daniel Edwards (“Investigator Edwards”) for investigation.

On October 04, 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 Edwards on October 19, 2022, at 9:00 a.m.

On October 19, 2022, Investigator Edwards inspected the work that had been done on the project to date. He also took 46 photographs of the project. When he was finished, Investigator Edwards drafted Jobsite Inspection Notes. Ultimately, Investigator Edwards substantiated 6 of Complainant’s complaint items. Specifically, Investigator Edwards determined that complaint items 2-5 and 7-8 constituted poor or incomplete work, and failed to meet the Registrar’s minimum workmanship standards. Notably, regarding complaint item 7, Investigator Edwards found that the installation of drywall was “outside the scope of [Respondent’s] CR-34 license.”

On November 17, 2022, Investigator Edwards issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated some of Complainant’s workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on December 05, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E).

On November 17, 2022, the Registrar issued a Warning Letter to Respondent to advise that Respondent’s work on the underlying project required possession of an R-10 Drywall License that Respondent did not possess during the relevant time period, in violation of Ariz. Rev. Stat. § 32-1154(A)(16), which could result in discipline against Respondent’s license including suspension or revocation.

On December 06, 2022, Investigator Edwards escalated Complaint No. 2022-08264 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), 32-1154(A)(16), and 32-1154(A)(22).

On December 09, 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), 32-1154(A)(16), and 32-1154(A)(22). Respondent was given until December 24, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155.

On December 19, 2022, the Registrar received Respondent’s timely written Answer. Respondent offered the following explanation, in pertinent parts:

[I]n this case we were unable to reach any agreement I attempted multiple times to sort things out such as, text messages, returning to job site again and attempting to fix any of the concerns. Unfortunately, the customer did not allow us to fix any of the matters and instead had unreasonable demands.

I was not well informed that I needed to follow up with customer once again to attempt to fix matters, The [sic] customer had made it clear prior to the investigator going out that they did not want to reach any agreement unless it was on there [sic] terms which was unreasonable. Moreover, I understand I worked outside my scope of license I had the assumption that small repairs were allowed in my scope of work. Nonetheless I take full responsibility for being misinformed with my license limitations, I have reviewed all of my license regulations and limitations to not allow this to ever happen again.

(Emphasis added.)

On December 21, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on February 17, 2023. Per the January 12, 2023, Notice of Hearing the issues to be determined are 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)(16)

Charge 3: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on her own behalf, called Investigator Edwards as a witness, and submitted Exhibit 2. Armando Estrada Renteria testified on behalf of Respondent. The Registrar’s agency file (“Agency File”), including the Notice of Hearing and supplemental file (“Supplemental Agency File”), was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns residential property located at 6768 W. Buckskin Trl. Peoria, AZ 85383.

On or about August 09, 2022, the parties entered into a contractual agreement whereby Respondent agreed to paint Complainant’s ceiling, doors, baseboards, and walls; including kitchen drywall replacement, for $6,800.00.

The original painting contract was for $5,800.00, which was modified to include a 10x5 area of drywall for $1,000.00.

On or about September 06, 2022, Complainant tendered a $2,000.00 cash deposit to Respondent towards the contract.

On September 16, 2022, Complainant issued the following written complaint to Respondent regarding the workmanship on her project, in pertinent parts:

Armando, I’m baffled that you think that the way the house has been left is acceptable. Your contract clearly stated that you would do a light sanding and paint the doors however four of our doors have sticker command strips and hooks that you painted over. The carpet has several black paint sports in almost all the rooms as well as white paint dripped down our stairs. [W]e wanted to give you the opportunity to make this right and fulfill your contract so we can pay you the remaining balance however you only attempted to remove a sfew stains and pressure wash the paint off of the driveway befre we had to leave for our movers. We asked that you return to finish and your response was you are busy. At the end of the day all we want to be is happy with your work. With the peeling paint and damages that is impossible. We’d like to allow you to the change to repair the damages and make this right. However if you are refusing we will have no other option but to file a complaint with the ROC, and this is not what we want.

(All errors in original.)

On September 16, 2022, Mr. Estrada Renteria replied as follows:

Please have a Final punch list for me and a set day to complete it. every job is going to have touch ups I attempted to complete the job today for you and you refused. I would hate to have to file a claim The carpet wasn’t brand new from the get go and looked like the baseboards had been painted in the past my mistake by not taking any notes of that hinges were already painted door handles had white paint around them as well but I will take all responsibility for any clean up and touch ups that need to be done.

(All errors in original.)

On September 18, 2022, Complainant responded to Respondent, in pertinent parts, as follows:

When we approved your estimate I explained that we needed this job to be completed Wednesday September 14th as we were moving into our home Friday the 16th. So no we did not refuse to have you complete the work, we had a prior obligation to meet the movers and no longer feel comfortable with you at our property unattended.

With that being said we’d like to give you the opportunity to right this mess. Below you’ll find the punch list we are requiring to be completed for the release of your balance. Your original quote $5800 included walls, ceilings, doors along with baseboards. We asked that you repair some drywall requesting a 10x5 area for $1000, however you only replaced 5x5 area leaving us with damaged drywall, for that we will pay you $500. This is a total of $6300 less the $2000 deposit leaves a balance of $4300 all to be paid when the job is completed.

Doors to be removed from the home (painted in the backyard), sanded with hardware removed and repainted, left to fully dry and you to return and install properly.

Return the drywall underneath the microwave to a proper finish and repaint

Sand and repaint the laundry area on the wooded portion.

My husband is home Friday the 23rd of September through the weekend and we can allow access to the home at that time.

(All errors in original.)

On December 06, 2022, Investigator Edwards confirmed with Complainant that no corrective work had been performed on the project by Respondent, due in part, because the parties had pending small claims litigation in Justice Court regarding the matter outside of the Registrar’s jurisdiction, and because Mr. Estrada Renteria did not review the Registrar’s Directive correspondence until after December 05, 2022, though it had been timely delivered.

Closing Arguments

In closing, Respondent argued that due to Complainant’s “unreasonableness” regarding the punch list Mr. Estrada Renteria was unable to complete the underlying project, and therefore should not be disciplined by the Registrar.

In closing, Complainant argued that Respondent had ample opportunities to address the punch list and perform corrective work prior to Complaint No. 2022-08264 being filed with the Registrar, and further argued that because there had not been a denial of access to the project site during the Directive’s compliance period that Respondent had not been precluded from performing corrective work during that time. Complainant asked that Respondent’s license be subject to appropriate discipline in proportion with the underlying conduct at issue.

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.

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(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Knowingly contracting beyond the scope of the license or licenses of the licensee.”

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.”

The material facts in the case at bar are not in dispute.

It is undisputed that the parties had a modified contract for Respondent to perform paint and drywall work at Complainant’s residence for $6,800.00, and that Complainant tendered $2,000.00 to Respondent for this purpose. It is also undisputed that some of the work Respondent performed on the project fell below the minimum workmanship standards set by the Registrar. It is also undisputed that some of the work Respondent performed on the project exceeded the scope of its license. It is further undisputed that Respondent did not perform any corrective work as identified in the Registrar’s Directive. As such, violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22) have been established.

While the Tribunal opines that all licensees must avail themselves of the duties, responsibilities, and restrictions of their licensure, the record reflects that Mr. Estrada Renteria’s erroneous belief that small repairs, including drywall, were permitted under Respondent’s license was ignorant, not “knowing.” Thus, a violation of Ariz. Rev. Stat. § 32-1154(A)(16) has not been established.

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 Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain his burden. There is no evidence in the record that excuses or otherwise justifies Mr. Estrada Renteria’s inaction and/or lack of performance on this project. Moreover, the record clearly reflects that Respondent did not refund any monies Complainant paid towards the completion of the underlying project. Notably, the record is also devoid of any evidence which would suggest a court of competent jurisdiction issued a Stay Order, or grant of Special Action petition, to the Registrar that would preclude it from taking action in this matter.

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), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Desert Home Painting LLC, ROC License No. 328279, be suspended for four (4) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).

Pursuant to Ariz. Rev. Stat. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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, February 27, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

LaDonna Clark, Complainant

6768 W. Buckskin Trl.

Peoria, AZ 85383

[email redacted]

Desert Home Painting LLC, Respondent

c/o Armando Estrada Renteria, Agent

7528 W. Turney Ave.

Phoenix, AZ 85033

[email redacted]

By: OAH Staff