ALJDEC - Licensing

2024A-06429-CHC-ROC · Registrar of Contractors · 2024-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Marie West,

COMPLAINANT,

v.

Diamond Painting, Inc.

License No. ROC 277252,

RESPONDENT.

No. 2024A-06429-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 25, 2024

APPEARANCES: Complainant Patricia Marie West appeared on her own behalf. Donald Tellefsen appeared on behalf of Respondent Diamond Painting, Inc. Arizona Registrar of Contractors Investigator Joey Chester appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None

FINDINGS OF FACT

Diamond Painting, Inc. (“Respondent”) is the holder of License Number 277252 issued by the Arizona Registrar of Contractors (“Registrar”). Donald Tellefsen is Respondent’s Qualifying Party and Officer.

On or about April 24, 2024, Patricia Marie West (“Complainant”) contracted with Respondent for the painting of the exterior of Complainant’s home. The contract specified that “paint color to be color to match – low sheen satin washable paint.” The contract price was $2,500.00. Complainant has paid Respondent in full.

On or about June 3, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Joey Chester. After a July 3, 2024 Jobsite Inspection, at which both parties were present, Investigator Chester issued a Written Directive to Respondent, dated July 10, 2024, 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 Friday, August 2, 2024.

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: poor paint job. Undersprayed, overspray & not sprayed

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.

Complaint Item 2: House trim left unpainted

Investigator’s Observation: At time of inspection viewed multiple areas that were not painted, respondent to correct by appropriate means.

Complaint Item 3: Stucco cracked on house and pony walls unpainted

Investigator’s Observation: At time of inspection verified cracks filled with caulking but not painted, respondent to correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 4: Garage door and trim all painted same color

Investigator’s Observation: Complaint item does not constitute poor workmanship, and meets minimum workmanship standards.

Complaint Item 5: Powder coated security door on garage foot door/ paint spray

Investigator’s Observation: Unable to verify, no evidence to prove or disprove the damage is the responsibility of the Respondent.

The deadline in the Written Directive was extended to August 16, 2024.

Following the expiration of the extended deadline for the Written Directive, Investigator Chester contacted Complainant who informed him that all items had not been corrected.

Investigator Chester conducted a Compliance Jobsite Inspection on September 9, 2024. Investigator Chester’s Compliance Jobsite Inspection Notes set forth the following:

Compliance Findings:

Complaint Item 1: poor paint job. Undersprayed, overspray & not sprayed

Investigator’s Observation: During compliance inspection verified areas that were not painted.

Complaint Item 2: House trim left unpainted

Investigator’s Observation: Verified front trim of house that had been unpainted

Complaint Item 3: Stucco cracked on house and pony walls unpainted

Investigator’s Observation: Paint peeling and chipping off painted pony walls front and backyard

Thereafter, Investigator Chester forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).

Investigator Chester testified consistently with the findings contained in his Jobsite Inspection Notes, the Written Directive, and the Compliance Jobsite Inspection Notes. Investigator Chester referenced several of the photographs he took at both inspections that depicted the items of Complaint that were ordered to be corrected.

Investigator Chester testified that the Written Directive was extended due to the fact that Complainant had not received approval from her homeowner’s association (“HOA”) for the paint color. Investigator Chester further testified that he received multiple calls from both parties during the period of the Written Directive, and that the parties were not getting along and were have issues communicating with each other.

Complainant agreed with Investigator’s Chester’s testimony.

Mr. Tellefsen testified that Complainant initiated this Complaint because she failed to obtain HOA approval. Mr. Tellefsen further testified that he “did everything to please” Complainant, however, Complainant screamed at him, called him names, and harassed him. Mr. Tellefsen returned to the jobsite twice in an attempt to remedy the issues, however, he testified that there was “no pleasing her.” The Agency record contains several emails from Respondent to Investigator Chester apprising him of the status of the corrective work and Complainant’s lack of cooperation, including her unwillingness to show Respondent the areas that she felt needed to be addressed. The parties’ contract calls for the paint to be a “match” to the existing color. Mr. Tellefsen asserted that Complainant’s motive in filing this Complaint was to attempt to have the entire house re-painted in a HOA approved color, and yet, Complainant has not received approval from her HOA.

Administrative notice is taken of Respondent’s prior License record on December 5, 2024. Such prior License record reflects that Respondent’s License Number 277252 was first issued on March 23, 2012, and is active. Such prior License record also reflects that there is only the instant open Complaint, no resolved/settled complaints, and no complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not complete all of the corrective work following the Written Directive being issued and acknowledged such. However, the credible evidence of record established that Complainant would not cooperate with Respondent notwithstanding Respondent’s repeated attempts to accomplish the corrective work. Complainant’s demeanor toward Respondent resulted in a challenging situation for Respondent who credibly testified that he could not seem to please Complainant due to Complainant not having received HOA approval for the paint color. Therefore, the evidence established that valid justification existed for the lack of full compliance. Therefore, Complainant did not establish a violation of A.R.S. § 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 Number 277252 for a period of one (1) day.

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, December 10, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Joey Chester

[email redacted]

Diamond Painting Inc.

[email redacted]

Patricia Marie West

[email redacted]

By: OAH Staff