ALJDEC - Licensing
2022A-11017-CHC-ROC · Registrar of Contractors · 2023-05-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Barbara Bruhn,
COMPLAINANT,
v.
Professional Touch Painting LLC
ROC License No. 337926,
RESPONDENT
No. 2022A-11017-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 14, 2023 at 9:00 AM.
APPEARANCES: Barbara Bruhn (“Complainant”) appeared on her own behalf. Brandon Smith appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of Professional Touch Painting LLC (“Respondent”). Timothy Brown and Nicole Bennett observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the 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 May 03, 2022, the Registrar issued License No. 337926 Specialty Dual CR-34 Painting and Wall Covering contracting license to Respondent. The license is currently active and renewed through May 31, 2024. Edward Jason Nawrot is the Qualifying Party/Member on this license. Respondent’s address of record for the license is 3140 Samaritan Way Prescott, AZ 86301. Respondent has an active $6,750.00 surety bond on the licensed issued by RLI Insurance Company effective March 18, 2022. The license no prior disciplinary record. There is one open complaint listed which is presumed to be related to this matter.
On or about December 01, 2022, the Registrar received a 2-item complaint from Complainant against Respondent’s License No. 337926 alleging abandonment and poor workmanship of their painting project. The Registrar designated it Complaint No. 2022-11017 and assigned to Brandon Smith (“Investigator Smith”) for investigation.
On December 05, 2022, Investigator Smith issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on December 27, 2022, at 1:30 p.m.
On December 27, 2022, Investigator Smith inspected the work that had been performed on the project to date. He also conducted a review project-related correspondence exchanged between the parties, including an estimate and proof of payments, and took 17 photographs of the project site. Respondent was not present. Respondent was not present. When he was finished, Investigator Smith drafted his Inspection Notes. Ultimately, Investigator Smith only substantiated complaint item 1. Specifically, Investigator Smith observed “several sports that paint was lifting, bubbling, and peeling from the wall.” Investigator Smith concluded that complaint item 1 failed to meet the Registrar’s minimum workmanship standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On January 05, 2023, Investigator Smith issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated one of Complainant’s workmanship allegations against Respondent. Respondent was put on notice that it had until 5:00 p.m. on January 23, 2023, 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 an unknown date, Investigator Smith issued a Compliance Jobsite Inspection Notification Letter to Complainant only, advising that he would conduct an inspection of the project on January 25, 2023, at 2:45 p.m.
On January 25, 2023, Investigator Smith inspected the corrective work that had been performed on the project and took 20 photographs. When he was finished, Investigator Smith drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Smith determined that Respondent had made a “[hasty] attempt” to correct complaint item 1, as “[s]everal spots on the wall remained bare and exposed.” Investigator Smith also observed “[p]aint that had bubbled was scraped away and painted over.” Investigator Smith noted that “Respondent did not blend the work properly,” and that “paint used to make repairs is off color.”
On January 26, 2023, Investigator Smith forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On February 01, 2023, 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 February 16, 2023, to respond with his Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On February 13, 2023, the Registrar received Respondent’s Answer whereby Respondent noted in pertinent part, as follows:
I told [Complainant] that after the paint dried it may not match and we would have to probably paint the entire wall again. The wall is falling apart though and in need of repair.
On February 15, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 14, 2023. Per the March 09, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
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 her own behalf and called Investigator Smith as a witness. The Registrar’s 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 2555 S. Painted Mesa Trl. Cottonwood, AZ 86326.
On or about May 11, 2021, Complainant and Respondent entered into a $9,000.00 exterior home painting contract, which also included painting of the perimeter wall, of Complainant’s residence.
Complainant paid the contract in full.
On September 01, 2021, work on the project commenced. On September 30, 2021, work on the project stopped or was otherwise completed.
At no time during either the jobsite or compliance jobsite inspections did Investigator Smith observe Complainant’s perimeter wall to be “falling apart” or in a state of disrepair or deterioration.
Complainant did not receive a refund from Respondent on the project, either in whole or in part.
Closing Arguments
Complainant declined to provide a closing argument.
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 for the Registrar 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] contractor shall perform all work in a professional and workmanlike manner.”
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) holds, in pertinent parts, that the Registrar may impose 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 holds that no 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.
Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”
Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
The material facts in the case at bar are not in dispute.
It is undisputed that the parties had a $9,000.00 residential painting contract, which Complainant paid in full. It is also undisputed that Investigator Smith determined that the work Respondent performed on the project did not satisfy the Registrar’s minimum standards. It is further undisputed that Respondent failed to timely comply with the Registrar’s Directive.
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 remediate Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. 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 and never returned any portion of Complainant’s payments, and had no affirmative defense(s) for doing so.
Because Complainant has established Respondent’s violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established grounds for the Registrar to take disciplinary action against ROC License No. 337926.
Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent Professional Touch Painting LLC, ROC License No. 337926, be suspended for two (2) days based on its violation(s) 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 $250.00 in certified funds as a civil penalty.
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.
NOTICE
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 Final Order will be forty (40) days from the date of that certification.
Done this day, May 01, 2023.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Professional Touch Painting LLC, Respondent
3140 Samaritan Way
Prescott, AZ 86301
[email redacted]
Barbara Bruhn, Complainant
2555 S. Painted Mesa Trail
Cottonwood, AZ 86326
[email redacted]
By: OAH Staff