ALJDEC

97F-H0257-ROC · Registrar of Contractors · 1998-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 1998. APPEARANCES: Barbara MacAllister, Complainant, appeared on her own behalf. Michael Richard Dunlap, Respondent and holder of Class C-14 license No. 076196, doing business as Advantage One Construction, appeared representing himself.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made: FINDINGS OF FACT 1. Barbara McAlister, Complainant, resides at 1621 S. Gran Circulo, Fort Mohave, Arizona. 2. Michael Richard Dunlap, Respondent and holder of Class C-61 license No. 107603, does business as Advantage One Construction. 3. This matter arises out of painting Respondent performed for Complainant with respect to Complainant’s mobile home. 4. On or about May 26, 1997, the parties entered an agreement for the painting of the interior of Complainant’s home. 5. Dissatisfied with Respondent’s work, as well as Respondent’s response to her complaint’s, Complainant filed a Complaint with the Registrar on June 17, 1997. In the Complaint, Complainant specifically charges that Respondent failed to prevent overspray on various items, failed to clean-up upon completing the job, and improperly installed wood molding over a ceiling joint in her living area. 6. On July 15, 1997, after inspecting the paint job, Jim Boyett, Inspector for the Registrar, issued a Corrective Work Order (“CWO”) ordering Respondent to take the following action: 1. Install proper molding on ceiling joints. 2. Repaint ceiling as needed. 3. Remove all overspray inside mobile home and off of all furniture and other household items. 4. Properly repair or replace all items damaged by overspray.

The preponderance of the evidence establishes that the CWO is reasonable and justified. 7. The preponderance of the evidence further establishes that Respondent substantially complied with the CWO; however, the preponderance of the evidence also shows that the following additional corrective measures are required: 1) the wood molding covering one of the ceiling joints is inconsistent in aesthetic appearance with the rest of the ceiling, requiring correction; 2) those areas of furnishings, fixtures, panels, and moldings where Respondent removed original finish, along with overspray, require limited refinishing; 3) remove remaining noticeable overspray. 8. The preponderance of the evidence demonstrates that at least some of the furniture and much of the carpet in Complainant’s home are, and have been, in a state of decline. (See, e.g., Complainant’s Exhibit J). To the extent corrective measures are still required, they are limited to correcting only those conditions Respondent caused and which are specifically noted in paragraph 7 above. 9. Finally, this Judge is convinced that had the foregoing items still requiring corrective measures been clearly detailed and explained to Respondent after issuance of the CWO, Respondent would have corrected the items.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take 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 written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. Complainant fails her burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts, Complainant sustains her burden of demonstrating violations. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enter., Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (Ariz. 1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). Complainant demonstrates sufficient evidence that Respondent’s actions and/or omissions outlined in paragraphs 7 of the Findings of Fact above constitute violations of A.R.S. §§32-1154A(7) and A(3), namely A.A.C. R4-9- 108. 4. With respect to Respondent’s alleged failure to take corrective action without good cause, Respondent substantially complied with the CWO; Respondent’s actions/omissions do not constitute a failure to take corrective action.

RECOMMENDED DECISION In view of the foregoing, it is recommended, commencing fifteen (15) days after the effective date of the final order in this matter, that Respondent’s Class C-61 license, No. 107603, be suspended. It is further recommended that Respondent have an opportunity to avoid suspension of its license. If Respondent corrects the items outlined in paragraph 7 of the Findings of Fact above, on or before the expiration of fifteen (15) days after the final order’s effective date, then no license suspension shall take place and the instant Citation and Complaint shall be closed. Done this day, May 22, 1998.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826