ALJDEC - Licensing
2023A-08962-CHC-ROC · Registrar of Contractors · 2024-02-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jessica Brodrick,
COMPLAINANT,
v.
Four Peaks Painting & Cabinet Refinishing
LLC,
License No. ROC 314229,
RESPONDENT.
No. 2023A-08962-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 25, 2024.
APPEARANCES: Jessica Brodrick represented herself.
Harrison Zimmermann, Qualifying Party and Owner, represented Four Peaks Painting & Cabinet Refinishing LLC.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Notice of Hearing and attachments; Complainant’s Exhibits 1-12 and 14-26; and, Respondent’s Exhibits 1-10.
_____________________________________________________________________
FINDINGS OF FACT
Four Peaks Painting & Cabinet Refinishing LLC (Respondent) is the holder of License No. 314229, Specialty Dual CR34 Painting and Wall Covering, issued by the Arizona Registrar of Contractors (Registrar) on June 28, 2017.
In late June or early July of 2023, the parties entered a contract for cabinet refinishing at Complainant’s property. The contract between the parties was for $2,500.00 and called for a $1,250.00 deposit; Complainant paid a deposit of $1,000.00.
On August 5, 2023, Jessica Brodrick (Complainant) filed a Licensed Complaint Form (Complaint) with the Registrar indicating her complaints regarding Respondent’s cabinet refinishing work. Complainant noted issues with the sanding (which caused damage) and the resultant painting/refinished surfaces. The work began on July 1, 2023 (removing the cabinet doors for refinishing), followed by work on the framework, and the cabinet doors being subsequently brought back and installed on July 10, 2023.
After receiving the Complaint, Registrar’s Investigator Todd Anderson scheduled and conducted a jobsite inspection on August 28, 2023, took photographs, and, thereafter, issued a Written Directive (Directive) on September 19, 2023 verifying that the cabinetry work needed corrective work.
The Directive noted the following work needed to be corrected:
Compliance Item: 1 - Paint job not sanded, primered and painted properly.
Investigator’s Observation: It appeared as though, at least on the edges of several drawers, that primer was not applied. However, there were several areas where insufficient paint coverage exposed the light-colored primer. Also, observed peeling paint on the frame of the lower cabinet to the right of the stove. And lastly, I observed the existence of pin holes throughout the cabinetry indicating possible insufficient atomizing air pressure and an unclean surface.
*Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall
perform all work in a professional and workmanlike manner.
Compliance Item: 2 - Drip marks on cabinets
Investigator’s Observation: Verified. Observed some drip marks on the
right-hand upper cabinet face to the right of the refrigerator.
*Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall
perform all work in a professional and workmanlike manner.
Compliance Item: 3 - Molding not cut and mounted properly
Investigator’s Observation: Verified. Observed several areas of poorly executed miter cuts, caulking, and sanding of Crown Molding. The Respondent stated he was not compensated for that part of the project, however, the job did not meet minimum workmanship standards and affected the overall appearance of the cabinetry as a whole. All joints on molding, casing, etc. should fit and be securely attached, as well as properly filled and sanded.
*Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall
perform all work in a professional and workmanlike manner.
Compliance Item: 4 - Missed areas
Investigator’s Observation:
(Addressed in Complaint Item #1) Observed inadequate paint coverage in
several areas of the cabinetry; especially on the outer edges of the drawers and cabinets. Paint should be applied in an amount conforming to manufacturer's specifications of coverage and in sufficient quantity to visually cover all specified areas.
*Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall
perform all work in a professional and workmanlike manner.
Compliance Item: 5 - Missed holes being filled
Investigator’s Observation: Observed (1) lower drawer face located at the
bottom left hand corner of the kitchen Island that was not filled and numerous other holes on nearly every cabinet door face where handles were previously exchanged for knobs and the extra hole was not adequately filled and sanded.
*Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall
perform all work in a professional and workmanlike manner.
Compliance Item: 6 - Sanding damage to cabinets
Investigator’s Observation: Observed a circular mark of approximately 7-8" in diameter on an upper cabinet door to the right of the microwave
presumably left there by the use of a sander or possibly a paint can.
*Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall
perform all work in a professional and workmanlike manner.
The Registrar set forth October 4, 2023 as the deadline for Respondent’s compliance with the Directive.
On November 1, 2023, Investigator Anderson conducted a compliance inspection; he inspected the work, took photographs, and determined that the Directive items had not been corrected.
Anderson Investigator subsequently forwarded the Complaint to ROC legal department for legal citation against Respondent.
The Registrar issued a Citation on November 14, 2023, charging Respondent’s license with possible violations of: ARIZ. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; and, Ariz. Rev. Stat. § 32-1154(A)(22).
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 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”
On November 24, 2023, Respondent filed its answer (Answer) to the Citation. Respondent noted that its contract had fully specified the company’s refinishing process and indicates that the work is guaranteed for four years. Respondent indicated that, after it reinstalled the cabinets, Complainant had demanded that the work be redone according to her specifications, which were not the refinishing process that Respondent had contracted to perform. Respondent further noted that Complainant had denied access to Respondent to do any more work and, even after the August 28, 2023 job site inspection, Complainant had not cooperated in giving dates for Respondent’s access to the property to do the directed corrective work.
The Registrar granted some extensions to the Directive deadline to assist in accommodating Complainant’s scheduling issues.
At hearing, Investigator Anderson testified regarding the workmanship deficiencies he had observed and that those issues had not been corrected.
At hearing, Complainant argued that the Respondent’s work was “horrible” and was not the type of refinishing work that should have been done on oak cabinets. Complainant argued that the biggest issues were that there was now sanding damage on two cabinet doors, which caused those doors to look different from the other doors, and that the crown molding work needed to be replaced.
At hearing, Respondent agreed that Complainant was not happy with the results but noted that they offer a 4-year warranty on “chipping, peeling or bleeding.” Respondent noted that he had believed there were only a couple of items to do to correct the issues. Respondent also indicated that Complainant had taken them to small claims court and Respondent had believed that that process had settled the matter between the parties; the small claims process had ended up with a monetary settlement in an amount more than the amount Complainant had paid Respondent in her deposit.
The hearing record demonstrated that the parties’ relationship and communications deteriorated after the Directive.
Since the hearing session, neither party has notified the Tribunal that the matter was resolved informally between the parties prior to the date of this recommended decision.
Administrative notice is taken today of Respondent’s license record with the Registrar, which reflects that the instant matter is the only open complaint.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 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).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Following the issuance of the Directive mandating correction of the window installations regarding workmanship, Investigator Anderson found those workmanship contracting violation issues still existed at the time of the compliance inspection. At hearing, Investigator Anderson indicated that those same workmanship issues remained uncorrected.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108, for failure to perform all work in a professional and workmanlike manner.
11. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar suspend Respondent’s ROC License 314229 for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 may 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
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, February 7, 2024.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Legal Department
[email redacted]
[email redacted]
Four Peaks Painting & Cabinet Refinishing LLC
[email redacted]
Jessica Brodrick
[email redacted]
By: OAH Staff