ALJDEC - Licensing
2023A-06906-CHC-ROC · Registrar of Contractors · 2024-01-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tiffany Herschman ,
COMPLAINANT
v.
John Lee Bowers Jr
DBA: Bowers Painting
License No. ROC 324868,
RESPONDENT
No. 2023A-06906-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 29, 2023
APPEARANCES: Tiffany Herschman appeared on her own behalf. John Bowers appeared on his own behalf.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
EXHIBITS ADMITTED INTO EVIDENCE: The electronic hearing file submitted by the Registrar of Contractors, Complainant’s exhibits 1 through 23, and Respondent’s exhibits A through R.
FINDINGS OF FACT
John Lee Bowers, Jr., DBA: Bowers Painting (Respondent) is the holder of License No. 324868 issued by the Arizona Registrar of Contractors (Registrar).
On December 6, 2022, Tiffany Herschman (Complainant) and her husband Scott Herschman entered into a contract with Respondent for, among other things, painting of the exterior of her home and sanding and staining of her deck.
Communication between the parties ceased between March 30, 2023 and May 12, 2023. On April 29, 2023, Respondent and his wife were in a major head on collision. This collision resulted in Respondent suffering from a broken back. The Herschmans were never informed of the accident. No evidence was presented to explain the gap in communication between the parties for the time period of March 30, 2023 and April 29, 2023, prior to the accident. Communication between the parties ceased until May 12, 2023.
On May 12, 2023, Respondent emailed Complainant and advised Respondent did not believe the job could be completed and a refund may be necessary. Furthermore, Respondent offered to connect Complainant with trusted contractors. Respondent made no mention of his broken back. Complainant did not reply to Respondent’s May 12, 2023 email.
On May 30, 2023, Complainant replied to a text message from Respondent’s Office Manager pursuant to the May 12, 2023 email. This text message contained a brief discussion about payment method used for the initial deposit and Mr. Herschman questioned what the refund offer would be.
On June 19, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor workmanship with respect to the project.
The Registrar assigned the complaint to Investigator Jim Dimond. On August 3, 2023, after a jobsite inspection, Investigator Dimond issued a written directive to Respondent 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 August 21, 2023.
RESTRICTIONS
You may not perform or hire other contractors to perform work that is outside the scope of your license.
If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - The exterior paint on the house, retaining walls, shed, deck flooring was never started.
Investigator’s Observation: As stated the work on the main body of the house has not been started.
It is my understanding that the interior of the home was completed under a separate contract and that work is done.
The respondent is to complete the exterior contracted project in an appropriate manner.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(a): A contractor shall perform all work in a professional and workmanlike manner.
Complaint Item: 2 - The curbing was started but has not been repaired.
Investigator’s Observation: The curb work on the north side of the driveway appears to be completed.
The curb work on the south side of the drive with the steps has not been performed.
The respondent is to complete the work in an appropriate manner.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(a): A contractor shall perform all work in a professional and workmanlike manner.
Complaint Item: 3 - The deck was partially sanded and the part that was done has also damaged the existing wood; the sanding has created scratches, swirls, and waves in the wood and it was not completed or stained.
Investigator’s Observation: The deck sanding has been started, some of the spindles in the railing have been removed.
The underside of the deck has been started to be sealed but it appears that the respondent has abandoned the project.
The respondent is to correct the condition in an appropriate manner.
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Following the issuance of the written directive, Respondent attempted to contact Complainant for the sole purpose of financial settlement. There was no evidence presented of communication between the parties for the period of August 3, 2023 and August 9, 2023.
On August 10, 2023, Respondent emailed Investigator Dimond informing him the Herschmans refused to reply to Respondent’s correspondence.
On August 11, 2023, Investigator Dimond received an email from the Herschmans informing him Respondent’s bond was suspended. Investigator Dimond emailed Respondent asking for clarification regarding the alleged suspension of his bond. Respondent confirmed his bond was suspended, but he expected a new bond to be issued the same day. However, no new bond was ever issued.
On August 25, 2023, after the written directive deadline expired, Investigator Dimond emailed the parties for an update on the project. Mr. Bowers replied to Investigator Dimond stating the Herschmans never replied to any correspondence. After the issuance of the written directive, Respondent attempted to engage in financial settlement discussions and Complainant did not reply; Investigator Dimond determined no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).
At hearing, Investigator Dimond testified consistently with his jobsite inspection notes and written directive.
At hearing, Mr. Bowers testified the exterior paint project was challenging from the start due to inclement weather and scheduling conflicts. Respondent testified before the written directive was issued, Ms. Bowers emailed the Herschmans to coordinate and schedule time for workers to complete the project, but the Herschmans never replied. Mr. Bowers testified he attempted to communicate with Mr. Herschman through text and email about financial settlement after the written directive was issued, but once again, the Hershman’s never replied.
Mr. Herschman testified that on November 23, 2022, he and Complainant accepted bids from painters to paint the exterior of their property. The Herschmans accepted Respondent’s bid and paid the deposit of $7,770.00. On December 28, 2022, Respondent’s crew curb painting, curb patch work, and sanding of the deck. Work stopped due to inclement weather. This occurred several times over the next three months. On March 29, 2023, Tina Bowers, Respondent’s wife and General Manager of Respondent, contacted the Herschmans and informed them she was taking over the project to expedite completion. Mrs. Bowers walked through the jobsite with Mr. Herschman and identified the outstanding items on the project.
Mr. Herschman alleged all of Respondent’s communications regarding financial settlement were filled with lies and chose not to reply. Mr. Herschman testified after the written directive, Respondent never discussed scheduling time to complete the project and the project was never completed.
Administrative notice is taken of Respondent’s License record on December 28, 2023. Respondent’s License record reflects that Respondent’s License No. 324868 was first issued on June 23, 2019, and is suspended. Respondent’s License record also reflects that there were no other open, disciplined, or resolved/settled complaints against Respondent’s license. Respondent’s License was suspended for lack of bond on August 10, 2023.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Respondent’s suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint.
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 failed to correct the verified workmanship issues address the written directive. While Respondent may have wanted to resolve the complaint through a financial settlement before the complaint or after the deadline expired, that is not the same as addressing the written directive. Financial settlement is voluntary and an alternative to proceeding with the complaint process. Mr. Bowers admitted he did not complete any repairs or finish the project. Therefore, Complainant established that Respondent’s work was not in a professional and workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
Respondent failed to take corrective action following a written directive from the Registrar. Because Respondent’s license was suspended, Respondent was unable to perform the work themselves, nor pay another contractor to perform the work. To comply with the written directive Respondent could have remedied their suspended license then complete the work required in the written directive, Respondent could have worked with the Herschmans to have them hire a contractor to finish the project and Respondent could have paid for the work, or in the alternative enter a financial settlement with Complainant. Mr. Bowers testified he was unable to obtain a new bond and believed the only option was financial settlement; however, Complainant is not obligated to enter a financial settlement. While it may be true Mr. Herschman admitted he refused to reply to Respondent’s settlement offers, he was not obligated to do so. No evidence was presented that Respondent attempted to schedule repairs following the written directive. Mr. Bowers admitted he did not complete any repairs or finish the project following the written directive. Therefore, Complainant established a violation of Ariz. Rev. Stat. § 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. 324868 for a period of one (1) day.
It is further recommended that the Registrar require Respondent to pay the sum of $100.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty 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 Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 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, January 2, 2024.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
John Lee Bowers Jr
DBA: Bowers Painting
[email redacted]
Tiffany Herschman
[email redacted]
Jim Dimond
[email redacted]
By: OAH Staff