ALJDEC

99F-M0616-ROC · Registrar of Contractors · 1999-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 21, 1999 at 9:00 a.m. APPEARANCES: Complainant appeared through its general manager, Art Thruston; Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Complainant presented evidence and testimony and, based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT The Registrar of Contractors issued License No. 124505, Class C-34 to Respondent, an individual, on June 16, 1997. The Registrar’s records reveal that Respondent’s license is delinquent and, at the time of the hearing, was suspended. The Registrar issued License No. 120950, Class B to Complainant, a corporation, on January 20, 1997. Complainant contracted with homeowner Bruce Martin to act a general contractor for construction of a 2,500-square- foot custom home at 6426 E. Redmont Drive in Mesa, Arizona. On or about August 26, 1998, Complainant accepted Respondent’s proposal to paint the “interior and exterior of house involving front door and roof vent finish; paint to specifications and plans” at a cost of $4,500.00. Complainant added and Respondent accepted the following terms to the parties’ contract: “Paint interior within 5 days; 45% when done. Paint exterior when ready within 5 days; 45% when done. Touch up when ready, within 3 days; 10% when done. Extra work at $20/hour plus mat’l.” Because Respondent had not finished either the exterior or the interior of the house by November 3, 1998, Complainant filed a complaint to the Registrar against Respondent’s license. Homeowner Bruce Martin subsequently made a complaint to the Registrar for various workmanship deficiencies against Complainant’s license, which was designated Case No. M99-1013 in the Registrar’s records and number 99F- M1013-ROC in the Office of Administrative Hearings’ docket. On September 9, 1999, the Registrar accepted Administrative Law Judge Allen Reed’s recommended decision, which found the following painting deficiencies: F. There was no physical evidence presented to determine the variation in shading of the interior paint. Oral testimony did not sufficiently convey the color variation or deviation alleged in the interior of the house. The testimonial evidence did show that mistakes were made in painting the interior of the home initially, as well as after making corrections, especially the pocket door corrections. Taken in its entirety, the evidence shows the interior paint needs to be corrected for uniformity and to conform to the original paint specifications as to what areas are to be flat and what areas are semi gloss. The requirement to correct interior painting includes cleaning the shelves where dirt was painted over resulting in painted “gritty” surfaces, and properly painting those shelves.

G. Numerous windows and window frames have excess paint on them which is unacceptable and needs to be cleaned up or removed.

H. Paint is required in the area of the stucco cracks shown in Exhibit 15. The evidence did not establish that the cracks exceeded a specified standard.

Decision and Order in M99-1013 at 3, Finding of Fact No. 9. Respondent subsequently filed a complaint to the Registrar against Complainant’s license for nonpayment on the job at issue, which was designated Case No. M99-1102 in the Registrar’s records and number 99F- M1102-ROC on the Office of Administrative Hearings’ docket. That matter is currently set for hearing before Administrative Law Judge Brian Brendan Tully on October 18, 1999. Although the notice of hearing was sent to Respondent’s last address of record with the Registrar and the beginning of the hearing was delayed 20 minutes to allow him additional travel time, he did not appear, personally or through a duly authorized representative.[1] In addition to the specific deficiencies noted in the Registrar’s decision in Case No. M99-1013, Complainant testified that the following items needed to be corrected: I. The plumbing vent pipes on the roof have not been painted.

J. The front door has not been finished with varnish or urethane.

K. The interior door hinges have paint on them.

L. Dirt is embedded in the interior pot shelves.

The suspended status of Respondent’s license must be considered in imposing disciplinary sanctions, since little or no motivation otherwise would exist for any contractor to undertake and complete any remedial measures to avoid suspension of an already-suspended license. The suspended license status of Respondent does not preclude Complainants from pursuing their administrative remedies nor preclude the Registrar of Contractors from conducting these disciplinary proceedings, which are authorized by A.R.S. § 32-1154(C). Respondent’s non-compliance with any condition deemed proper for inclusion in any Order entered in this proceeding should result in revocation of Respondent’ s suspended license, which, in turn and in due course, will lead to the initiation of appropriate disciplinary action pursuant to A.R.S. § 32-1154(A)(21) against the newly issued separate license on which the same individual is listed as a “person” as defined in A.R.S. § 32-1101(A)(5). CONCLUSIONS OF LAW In this administrative proceeding, Complainants bear the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also 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 Complainant produced at the hearing established that Respondent violated A.R.S. § 32-1154(A)(7)[2] in its initial application of paint and in failing to correct the deficiencies noted at Findings of Fact Nos. 5 and 8. RECOMMENDED ORDER In view of the foregoing, it is recommended that, commending on the effective date of the Registrar’s Decision and Order in this matter, Respondent’s License No. 124505, Class C-34 be revoked. It is further recommended that if, on or before the effective date of the order, the Registrar receives written proof that Respondent has corrected, in a professional and workmanlike manner, the deficiencies noted at Findings of Fact Nos. 5 and 8, no revocation take place and the Registrar shall close Case No. M99-0616. Done this day, September 21, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The undersigned was informed that Respondent had called the Office of Administrative Hearings at approximately 11:00 a.m. on the date that had been set for hearing, but by that time the hearing had concluded and the record had already closed in this matter.

[2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826