ALJDEC - Licensing

2023A-08420-CHC-ROC · Registrar of Contractors · 2024-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jackie Walden

COMPLAINANT,

v.

PJ Lane Contracting Inc.

License No. ROC 293929

RESPONDENT.

No. 2023A-08420-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 3, 2024 and January 29, 2024

APPEARANCES: Complainant Jackie Walden (Complainant) appeared on behalf of herself. Meghan Schandle, Esq. appeared on behalf of Respondent PJ Lane Contracting Inc. (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Bates 72-73 and Bates 79-81.

_____________________________________________________________________

FINDINGS OF FACT

1. On or about July 6, 2022, Complainant and Respondent entered into a home repair contract for the amount of $166, 283.67.

2. Complainant paid Respondent $63,000.00 under the contract.

3. On or about July 6, 2022, Respondent started work.

4. On or about March 1, 2023, Respondent stopped work.

5. On or about July 25, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors, (Registrar or ROC), alleging poor workmanship on the part of Respondent.

6. On or about August 15, 2023, Registrar Investigator Joey Chester conducted an initial job-site inspection.

7. On or about August 22, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct several complaint items, by appropriate means, no later than September 30, 2023. The August 22, 2023 Directive provided, in relevant part, as follows:

........................................

You are directed to remedy the following violations by the

appropriate means:

Complaint Item 1: Interior painting started over a year ago. The paint has NOT dried /set and is peeling off walls, shelves and everything sticks to them. (the walls were not cleaned per contract and contractor refuses to fix and finish) The doors and some bathrooms were never done.

Investigator’s Observation: During inspection throughout the whole house; walls and surfaces that were repainted were extremely sticky, Respondent shall correct by the appropriate means. Contractor should properly prepare and refinish areas where texture and color is not uniform, matching texture and color as closely as possible. Where the texture and color is not uniform and affects the majority of the wall or area, the whole area should be refinished.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 2: There is paint on several fixtures - electrical switches / outlets - hardware - shower door - mirrors - copper - fireplace stone - windows - inset lights were painted over - over spray inside and outside oak cabinets in bathroom - PAINT ON NEW SOLID OAK FLOORS

Investigator’s Observation: At time of inspection there was paint marks on switches, fixtures windows, all over the house, respondent will need to correct by appropriate means. Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 4: Fireplace upstairs - 1st painter scratched / sanded the finish off the frame and has not been repainted - ceiling was not caulked / filled around fireplace prior to painting; door tracks were painted and sliding doors will not shut

Investigator’s Observation: at time of inspection, paint on fireplace face and overspray on glass, respondent to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 5: stair railing was gouged down to some of the wood - they filled with wood putty and badly sanded - drips of paint / uneven / rough / peeling paint

Investigator’s Observation: stair railing had some chips of paint that had fallen off, respondent will need to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 6: ceiling fans cover plates and lights are not hung

Investigator’s Observation: at time of inspection lights either dangling from wires or just wires from ceiling, respondent to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 7: two electrical outlets are not properly installed

Investigator’s Observation: electrical outlets in kitchen need to be tightened up and flush with backsplash, respondent to determine issue and fix by appropriate means

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 8: granite in kitchen has chips - spaces - fills - missing wood under island granite

Investigator’s Observation: granite has many gaps where caulking was filled in areas, respondent to fix areas with correct color by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 10: new copper sink in bar is damaged from drywall guy - was to be replaced by contractor

Investigator’s Observation: at time of inspection, respondent acknowledged issue and will correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 11: drywall patches were not sanded prior to painting and is not flush with rest of walls

Investigator’s Observation: at time of inspection multiple areas where drywall was not sanded and rough areas on door and walls, respondent to correct by appropriate means. Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 13: plumbing / garden house outside south wall was to be copper and is rusted

Investigator’s Observation: at time of inspection hose turned on and rust came out, respondent to determine issue and correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 15: south side - roof tile had stucco paint on it - they painted it brown

Investigator’s Observation: at time of inspection, roof tile had brown paint on tile, respondent needs to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 16: exterior gate walls were not patched or painted prior / after new gates

Investigator’s Observation: at time of inspection, old gate attachments to wall hadn’t been filled and painted, respondent needs to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 17: new windows - frames are scratched. Contractor has been asked several times to touch up all markings, clean windows prior to screen install and provide manufacture warranty and model numbers, long with NFRC. None of which has been done

Investigator’s Observation: at time of inspection, windows still had sticker residue on them, respondent will need to fix by appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

........................................

Errors in original only.

8. On October 16, 2023, Investigator Chester conducted a compliance job-site inspection. Investigator Chester found that Respondent had corrected all of the Directive items with the exception of complaint items 1, 2, 5, 8, 16, and 17. Investigator Chester’s job-site inspection notes provided, in relevant part, as follows:

Complaint Item 1: Interior painting started over a year ago. The paint has NOT dried /set and is peeling off walls, shelves and everything sticks to them. (the walls were not cleaned per contract and contractor refuses to fix and finish) The doors and some bathrooms were never done. Investigator’s Observation: During inspection, the complaint item was not yet completed.

Complaint Item 2: There is paint on several fixtures - electrical switches / outlets - hardware - shower door - mirrors - copper - fireplace stone - windows - inset lights were painted over - over spray inside and outside oak cabinets in bathroom - PAINT ON NEW SOLID OAK FLOORS

Investigator’s Observation: During inspection, the complaint item was not yet completed.

Complaint Item 4: Fireplace upstairs - 1st painter scratched / sanded the finish off the frame and has not been repainted - ceiling was not caulked / filled around fireplace prior to painting; door tracks were painted and sliding doors will not shut

Investigator’s Observation:

Complaint Item 5: stair railing was gouged down to some of the wood - they filled with wood putty and badly sanded - drips of paint / uneven / rough / peeling paint Investigator’s Observation: During inspection, the complaint item was not yet completed.

Complaint Item 6: ceiling fans cover plates and lights are not hung

Investigator’s Observation: During inspection, the complaint item was completed/corrected.

Complaint Item 7: two electrical outlets are not properly installed

Investigator’s Observation: During inspection, the complaint item was completed/corrected.

Complaint Item 8: granite in kitchen has chips - spaces - fills - missing wood under island granite

Investigator’s Observation: During inspection, the complaint item was not yet completed.

Complaint Item 10: new copper sink in bar is damaged from drywall guy - was to be replaced by contractor

Investigator’s Observation: During inspection, the complaint item was completed/corrected

Complaint Item 11: drywall patches were not sanded prior to painting and is not flush with rest of walls

Investigator’s Observation: During inspection, the complaint item was completed/corrected

Complaint Item 13: plumbing / garden house outside south wall was to be copper and is rusted

Investigator’s Observation: During inspection, the complaint item was completed/corrected

Complaint Item 15: south side - roof tile had stucco paint on it - they painted it brown

Investigator’s Observation: During inspection, the complaint item was completed/corrected

Complaint Item 16: exterior gate walls were not patched or painted prior / after new gates Investigator’s Observation: During inspection, the complaint item was not yet completed.

Complaint Item 17: new windows - frames are scratched. Contractor has been asked several times to touch up all markings, clean windows prior to screen install and provide manufacture warranty and model numbers, long with NFRC. None of which has been done

Investigator’s Observation: During inspection, the complaint item was not yet completed.

9. On or about October 30, 2023, the Registrar issued a Citation against Respondent’s license. Through the Directive, the Registrar alleged that Respondent may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) (specifically, A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds the alleged charges are valid, the Registrar may suspend or revoke the license of Respondent.

10. Respondent filed a timely answer to the Citation.

11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

12. On November 16, 2023, the Registrar issued a Notice of Hearing setting the matter for hearing on January 3, 2024. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

13. A hearing was held on January 3, 2024 and January 29, 2024.

14. At hearing, Ms. Walden testified on behalf of herself. Complainant explained that Respondent performed poor work when performing repairs in her home.

15. Investigator Chester testified regarding his investigation of the complaint. Investigator Chester explained that he found that Respondent correctly repaired complaint item 4 at the compliance inspection although he failed to specify the finding in his compliance job-site inspection notes. During the hearing, Investigator Chester was asked by Respondent’s counsel to show the areas on his compliance job-site inspection photos where there were chips of paint that had fallen off, with regard to Complaint Item 5. Investigator Chester was unable to identify the chipped pieces and could not confirm that complaint item 5 should be substantiated.

16. Respondent’s qualifying party, Patrick John Lane, testified on behalf of Respondent. Mr. Lane disputed that Respondent performed poor work. Additionally, Mr. Lane stated that Respondent did not finish the project until Complainant made an additional payment.

17. Upon consideration of the evidence presented at hearing, the Administrative Law Judge concludes that Respondent performed poor work in connection with complaint items 1, 2, 8, 16, and 17, as described in the Directive. Investigator Chester properly concluded at the job-site inspection that complaint items 1, 2, 8, 16, and 17 were not correctly repaired by the Directive due date.

18. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 19, 2024. Such prior License record reflects that Respondent’s is currently active and that Respondent has no disciplinary history.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960)

3. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s work

regarding complaint items 1, 2, 8, 16, and 17 failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

5. The preponderance of the evidence shows that Respondent failed to correct complaint items 1, 2, 8, 16, and 17, without valid justification, which is a violation of Ariz. Rev. Stat. section 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 license number 293929 held by P J Lane Contracting Inc.

for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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. section 32-1101(A)(7), 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, February 20, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jackie Walden

[email redacted]

Megan N. Schandle, Esq.

[email redacted]

PJ Lane Contracting Inc.

[email redacted]