ALJDEC - Licensing

2023A-04335-CHC-ROC · Registrar of Contractors · 2023-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Carroll,

COMPLAINANT,

v.

Citrine Residential and Commercial Painting LLC,

ROC License No. 329565,

RESPONDENT.

No. 2023A-04335-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 26, 2023 at 9:00 AM.

APPEARANCES: Michael Carroll (“Complainant”) appeared on his own behalf. Steve Nelson appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of Citrine Residential and Commercial Painting LLC (“Respondent”).

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 July 06, 2020, the Registrar issued License No. 329565 Specialty Dual CR-34 Painting and Wall Covering contracting license to Respondent. Though renewed through July 31, 2024, the Registrar revoked License No. 329565 on May 03, 2023. Ashley Gutierrez is the Qualifying Party/Member on this license. Respondent’s address of record for the license is 6439 E. Covina Rd. Mesa, AZ 85205. Respondent still has an active $11,250.00 surety bond on the licensed issued by RLI Insurance Company. The license has been disciplined by the Registrar on two (2) prior occasions, and a complaint has been settled or otherwise resolved against the license.

On April 12, 2023, the Registrar received a 6-item complaint from Complainant against Respondent’s License No. 329565 alleging poor workmanship and abandonment of their project. The Registrar designated it Complaint No. 2023-04335 and assigned to Albert Bernal (“Investigator Nelson”) for investigation.

On April 28, 2023, Investigator Nelson issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on May 15, 2023, at 9:30 a.m.

In the interim, the complaint was transferred to Steve Nelson, Assistant Chief of Investigations (“Investigator Nelson”).

On May 15, 2023, Investigator Nelson conducted a review of the contract executed between the parties and inspected the work that had been performed on the project to date. He also took 11 photographs of the project site. When he was finished, Investigator Nelson drafted his Inspection Notes. Ultimately, Investigator Nelson substantiated 4 of Complainant’s 6 complaint items. Specifically, Investigator Nelson determined that complaint items 1-4 failed to meet the Registrar’s minimum workmanship standards and required Respondent to perform corrective work to remediate the identified deficiencies.

On May 16, 2023, Investigator Nelson forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On May 18, 2023, the Registrar issued a Citation to Respondent for alleged violation(s) of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a). Respondent was given until June 02, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155.

On June 02, 2023, the Registrar received Respondent’s Answer. In pertinent parts, Respondent noted that “the job had to be completed quickly and at after hours,” and that Respondent did not return to complete the work because its crew had “been accused of taking an item” from Complainant’s establishment and property damage.

On June 05, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 26, 2023. Per the June 12, 2023, Notice of Hearing the issue to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violation(s):

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a).

Hearing Evidence

Complainant testified on his own behalf and called Investigator Nelson as a witness. The Registrar’s agency file and Notice of Hearing were admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant owns commercial property located at 6056 E. Baseline Rd., Ste. 129 Mesa, AZ 85206.

On or about January 28, 2023, Complainant and Respondent entered into a $3,850.00 contract for Respondent to paint the interior of Complainant’s commercial space. Work on the project commenced January 28, 2023, and concluded the following day on January 29, 2023. Complainant shut down his gym to afford Respondent time to complete the project during business hours.

Complainant’s video surveillance cameras captured Respondent’s crew removing property and damaging items in the gym. In a compromise, the parties agreed to reduce the price of the contract to $3,500.00, which Complainant paid in full. Although the project was substantially complete, Respondent believed it was best not to return to complete the job due to the erosion of the parties’ relationship.

Because Respondent’s license was already revoked at the time of Investigator Nelson’s jobsite inspection, he forwent issuing a Written Directive from the Registrar (“Directive”) to Respondent regarding the complaint items he had substantiated.

Neither the Jobsite Inspection Notification Letter nor Citation was returned to the Registrar as undeliverable to Respondent.

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.”

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.

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.”

The material facts in this matter are not in dispute.

It is undisputed that Respondent had a commercial construction contract to paint Complainant’s gym, and that a majority of the work Respondent’s completed did not satisfy the Registrar’s minimum workmanship standards. It is also undisputed that the parties’ contract, which Complainant paid in full, was reduced to compensate for theft and property damage. Notably, the record also establishes that the revocation of Respondent’s license, in an unrelated matter, prevented the Registrar from requiring Respondent to perform corrective work on the project.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification or excuse for satisfy the Registrar’s minimum workmanship standards on Complainant’s project. These are an affirmative defenses 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’s performance on the underlying project failed to meet the Registrar’s minimum workmanship standards, and had no affirmative defense(s) for doing so.

Because Complainant successfully established a violation of Ariz. Rev. Stat. § 32-1154(A)(3) by a preponderance of the evidence, Complainant has also established cause for the Registrar to take disciplinary action against Respondent’s contracting license.

RECOMMENDED ORDER

In light of the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, Respondent Citrine Residential and Commercial Painting LLC, ROC License No. 329565, be revoked.

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

Done this day, July 27, 2023.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, 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]

Michael Carroll, Complainant

521 S. Bahama Dr.

Gilbert, AZ 85296

[email redacted]

By: OAH Staff