ALJDEC

98F-2208-ROC · Registrar of Contractors · 1999-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: February 1, 1999 at 1:30 p.m. APPEARANCES: Complainant appeared through its president, Rich Remakol, and its project manager, Maggie Pinckard; Respondent appeared through its qualifying party, David Michael Herre. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

This complaint concerns guttering that Respondent installed for Complainant, an association of owners of townhomes. The parties presented evidence and testimony and, based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. STATEMENT OF FACTS Events Leading to June 29, 1998 Inspection Respondent possesses Class C-05 License Number 091256, which the Registrar of Contractors issued on October 3, 1991. Sometime in 1997, Respondent contracted to install gutters, downspouts, and miters in three phases for Complainant. On March 6, 1998, Complainant made a complaint to the Registrar alleging that, although Respondent had completed and had been paid for the first two phases of the project, he had not finished the third phase of the project and the gutters installed in the first two phases leaked. The complaint was signed by Complainant’s property manager at the time, Joy Mulligan, whom Complainant had duly appointed and authorized to represent it. In a letter dated March 19, 1998, the Registrar’s inspector Lewis King informed Respondent that, “unless the matter is resolved within ten (10) days after receipt of this letter, we may request that a citation be issued against your license so that this matter may be resolved by an administrative hearing.” In a letter dated April 3, 1998, Complainant informed Inspector King that Respondent had neither contacted Complainant nor resolved the items of complaint and requested an administrative hearing. In a letter dated April 16, 1998, Inspector King provided the following information and advice to Respondent: A request for a citation against your license has been received in this office. I suggest that you contact the undersigned immediately.

Your attention is directed to A.R.S. 32-1154, subsection A, paragraph 23, which provides for the suspension or revocation of your license for:

“Failure 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 written directive from the Registrar . . .”

Your attention is also directed to A.R.S. 32-1154, subsection D, which provides that:

“The Registrar may impose a civil penalty not to exceed five hundred dollars on a contractor for each violation of subsection A, paragraph 23, of this section . . .”

The RC-C-014 or RC-C-012A letter, if sent by the Compliance Department constitutes the written directive referred to in the statute. An alleged violation of the above provision may be charged along with any additional violations which may stem from the complaint that has been filed against your license.

[Emphases in original.] Thereafter, Respondent did not perform any inspection or investigation of his own, but instead asked Inspector King perform an inspection because, according to Respondent, he installed the gutters properly and, if they leaked, the problem must be caused by the lack of a drip edge or something else beyond Respondent’s control. Regarding Complainant’s complaint that no work had been done on the third phase of the project, Respondent’s only response was “I may choose what work I will except [sic] to do.” Inspector King in a letter dated May 12, 1998 granted Respondent’s request for an inspection and further advised him: Attached is a copy of a complaint which has been filed against you. Without attempting to judge the merits of the complaint at this time, it would appear appropriate that you give this matter your immediate attention.

A jobsite is scheduled for 6-29-98 at 7:00 a.m. Complainant is required to be present.

COMPLAINANT WILL BE RESPONSIBLE FOR PROVIDING SAFE ACCESS TO ANY AREAS WHERE INSPECTIONS ARE NECESSARY.

CONTRACTOR: All items listed which are your responsibility should be corrected prior to the inspection. If all items are resolved before the inspection or shown not to be your responsibility, this complaint will be closed and will not become a part of your complaint file. If at the time of the inspection the complaint is found to have a reasonable basis, it will become part of your complaint file. . . . .

Should you be unable to attend and prior approval for continuation is not granted by your inspector, the inspection will be held in your absence and you will be advised in writing as to all corrective work or actions requested of you.

[Emphases added.] Events Leading to October 22, 1998 Compliance Inspection Respondent did not attend the June 29, 1998 jobsite inspection because, as he testified at the hearing, he is a busy man and Inspector King’s letter did not require his attendance. On July 9, 1998, as a result of Inspector King’s June 29, 1998 inspection, the Registrar in writing directed Respondent to perform, within fifteen days, appropriate corrective work on the following three problems at Complainant’s project: 1. Rain gutters and downspouts not finished per contract on phase 3 west building. Contractor to determine cause and correct condition.

2. Rain gutter miters leaking on phase 1 and 2. Contractor to determine cause [and] correct condition.

3. Rain gutter not run tight to vertical wall at unit #6525. Contractor to determine cause and correct condition.

The letter advised Respondent that the directive constituted the notice to which A.R.S. § 32-1154(A)(23) referred and that, if he did not perform the corrective work by the date he was directed to do so, the Registrar might impose a civil penalty under A.R.S. § 32-1154(D). In a letter dated August 5, 1998, Ms. Mulligan requested an administrative hearing because, although Respondent had completed most of the corrective work that the Registrar had directed him to perform, “a short section of guttering was installed, using an incorrect color” at Unit #6525. Ms. Mulligan stated that, although Respondent had told Complainant he would send someone out to paint the gutter the right color, the matter had not yet been resolved to Complainant’s satisfaction. Inspector King sent two letters to Respondent dated August 17, 1998. The first was similar to the letter dated April 16, 1998, described in statement of fact no. 6 above, again warning Respondent that a civil penalty might be imposed against his license if he did not comply with the Registrar’s directive within the time allowed. Inspector King’s second letter included as an enclosure Ms. Mulligan’s August 5, 1998 letter and advised Respondent that “it would appear appropriate that you give this matter your immediate attention” and that he should contact Complainant as soon as possible and correct all items for which he was responsible within ten working days. In a letter dated August 26, 1998, Ms. Mulligan informed Inspector King that Respondent had completed all the corrective work he had been directed to perform but that “while painting the extended section of guttering, overspray occurred in the area around the gutter” and that “the color of paint does not match the existing guttering.” On September 9, 1998, the Registrar issued the Citation and Complaint in this matter. On September 23, 1998, the Registrar received Respondent’s response to the Citation and Complaint, which consisted of a handwritten note that “all work regarding this matter has been resolved.” In a letter dated September 28, 1998, Ms. Mulligan informed Inspector King that Complainant did not consider the complaint resolved: [Respondent] called [Complainant], making an appointment for Thursday, September 24, 1998, following up on your Citation and Complaint.

[Complainant] received a faxed copy of the Complaint with a short note from [Respondent], stating that all work was completed and resolved on September 23, 1998.

[Complainant] wish[es] to make known, the situation had not been resolved. The gutter extension remains painted in an incorrect color. The overspray from the incorrect color of paint, needs to be removed from the main body of the building.

Events Leading to January 28, 1999 Prehearing Inspection To resolve the parties’ factual dispute regarding Respondent’s compliance with the Registrar’s directive, on October 22, 1998, Inspector King performed a second jobsite inspection. Once again, Respondent did not attend the jobsite inspection because, as he testified at the compliance hearing, he is a busy man and the Registrar did not require his presence. After the inspection, Inspector King confirmed that Respondent had completed all three phases of the project and had corrected the leaks noted in the initial complaint. Inspector King also determined, however, that the six-foot gutter that had been installed at Unit #6525 was not close enough to the unit, that the overspray Complainant noted had not been corrected, and that spray paint had been applied to the gutter instead of the factory-applied enamel required by the contract that was on the other gutters that Respondent had installed. On December 18, 1998, the Registrar sent the parties notice that this administrative hearing would be held to determine whether Respondent had substantially complied with the Registrar’s directive and, if not, the appropriate disciplinary penalty to be imposed. Maggie Pinckard succeeded Ms. Mulligan as Complainant’s property manager and, on January 14, 1999, the Registrar ordered that the caption in this matter be amended to show the proper Complainant. The Condition of the Project at the Time of Hearing On January 28, 1999 at 3:30 p.m., Inspector Lewis conducted a prehearing inspection, his third inspection of the jobsite. Although Respondent had meant to attend this third inspection, he was involved in a vehicular accident en route to the inspection, which unfortunately prevented his attendance. At the compliance hearing, Inspector Lewis testified that Respondent had corrected the overspray on the fascia, but that there was now dark paint the same color as the fascia on the lighter colored stucco below, which Inspector Lewis attributed to Respondent’s repair of the overspray on the fascia. Inspector Lewis also noted a dark color between two windows, which appeared to be overspray, but could not verify that Respondent caused the overspray. The six-foot section of gutter at unit #6525 still was the wrong color. Respondent testified that the longer gutter most recently installed at unit #6525 did have a factory-applied enamel finish of the same color as the other gutters. Since some time had passed since the initial installation, however, the color of the earlier installed gutters had faded. Respondent testified that he had explained this to Joy Mulligan, the project manager at the time, and that she had consented to the recently installed section being painted to make it appear faded like the earlier installed sections. Respondent finally testified that he personally had corrected the overspray on the fascia with a paintbrush and, therefore, could not have caused the overspray that Inspector King observed on the stucco. Rich Remakol, Complainant’s president, testified that the gutter that Respondent had originally installed at unit #6525 had been three inches too short. When Respondent installed a gutter that was the right length, as noted above, it was the wrong color. Mr. Remakol further testified that he had been Ms. Mulligan’s supervisor and that she had not told him about any agreement with Respondent that allowed that the six-foot section of gutter at unit #6525 to be spray painted. Such agreement also would appear inconsistent with Ms. Mulligan’s communications to the Registrar described in statements of fact nos. 11, 13, and 16 above. The parties agreed at the conclusion of the hearing that Respondent would meet Ms. Pinckard and Mr. Remakol at the jobsite at 8:00 a.m. on February 15, 1999 to replace the six-foot section with a gutter having factory- applied “classic cream” finish. Factors in Mitigation and Aggravation The Citation and Complaint issued by the Registrar advised Respondent that, if he were found in violation of any contracting law, his prior disciplinary record of final Registrar of Contractors’ orders might be considered in mitigation or aggravation. Accordingly, notice is taken of official records of the Registrar of Contractors, which reveal that, if the Registrar accepts this recommended decision, it will be the only final agency order against Respondent on the Registrar’s current record. Therefore, Respondent’s prior record is deemed to be excellent and, thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. Nonetheless, Respondent has spent more time denying that anything could be wrong with his work than it would have taken him to investigate and remedy the complaint in this matter. The waste of many people’s time, including his own, occasioned by Respondent’s unprofessional and cavalier attitude toward a legitimate complaint should be considered an aggravating factor, especially in view of the small cost for Respondent to replace a six-foot gutter section and to correct some overspray. At the conclusion of the compliance hearing, however, Respondent did agree to meet Mr. Remakol and Ms. Pinckard to resolve their remaining complaints, which may indicate that Respondent in the future will investigate complaints more conscientiously and, if appropriate, will correct problems in a more timely manner. CONCLUSIONS OF LAW In this administrative proceeding, Complainant bears the burden of proof and must establish a statutory violation by a preponderance of the evidence. See Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “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 “evidence which is of greater weight or more convincing than 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 at page 1064 (6th ed. 1990). The evidence presented at the hearing supports a conclusion that Respondent violated A.R.S. § 32-1154(A)(23) in failing to comply with the Registrar’s directive in a professional, workmanlike, and timely manner. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar suspend Respondent’s Class C-05 License No. 091256 on the effective date of the Registrar’s order, thirty-five days after the Registrar has mailed his decision to the parties. It is further recommended that, if on or before the effective date of the Registrar’s order Respondent provides the Registrar with written proof that he has performed appropriate corrective work in a professional and workmanlike manner to remedy the problems identified at statement of fact no. 22, no license suspension take place and Case No. 98-2208 be closed. It is further recommended that, pursuant to A.R.S. § 32-1154(D), the Registrar impose a civil penalty of two hundred dollars ($200.00) on Respondent for his violation of A.R.S. § 32-1154(A)(23).

Done this day, February 4, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of February, 1999, to:

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

By ___________________________

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