ALJDEC

99F-M1102-ROC · Registrar of Contractors · 1999-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 1999 APPEARANCES: Complainant appeared through its owner and qualifying party, Daniel Amado Ortega, Jr. Respondent appeared through its general manager, Art Thruston. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Registrar of Contractors issued License No. 124505, a Class C-34 painting and wallpaper license, to Respondent, a sole proprietorship of Daniel Amado Ortega, Jr., on June 16, 1997. The Registrar’s records reveal that Respondent’s Class C-34 license is delinquent and, at the time of the hearing, was suspended by operation of law. 2. On or about August 21, 1998, Complainant submitted a proposal to Respondent for work to be performed at the Martin residence in Mesa, Arizona. Complainant proposed painting the interior and exterior of the Martin residence, including the front door finish and roof vent finish. Complainant was to paint the house per plans and specifications. The contract price of $4,500.00 was to be paid as follows: $2,250.00 at the start of work and $2,250.00 at completion. 3. Respondent did not accept Complainant’s August 21, 1998, proposal. 4. On or about August 26, 1998, Respondent did accept another proposal submitted by Complainant. The accepted proposal provided that Complainant would paint the interior and exterior of the Martin residence, including the front door and roof vent finish, per plans and specifications. The contract price was $4,500.00. 5. The accepted written proposal is inconsistent as to the timing of payment from Respondent to Complainant. The following language was handwritten into the proposal:

Paint interior within 5 days 45% when done Paint exterior when ready within 5 days 10% when done Touch up when ready 10% when done Extra work at $20/hour plus material

Another provision of the accepted proposal indicates that the contract price of $4,500.00 would be payable to Complainant “at completion”. 6. Because Complainant had not finished either the interior or exterior scope of work by November 3, 1998, Respondent filed a complaint against Complainant’s license with the Registrar of Contractors. That complaint and the citation subsequently issued by the Registrar was designated Case No. M99-0616. When the Registrar forwarded the citation and complaint to the Office of Administrative Hearings for an administrative hearing, the matter was designated Docket No. 99F-M0616-ROC. 7. Homeowner Bruce Martin subsequently made a complaint to the Registrar of Contractors for various workmanship deficiencies against Respondent’s contracting license. That complaint and the subsequent citation issued by the Registrar was designated Case No. M99-1013. When that matter was forwarded to the Office of Administrative Hearings for an administrative hearing, that agency designated the matter as Docket No. 99F-M1013-ROC. 8. Complainant subsequently filed the complaint in this matter to the Registrar against Respondent’s Class B license for nonpayment on the Martin project. 9. On September 9, 1999, the Registrar accepted Administrative Law Judge Allen Reed’s recommended decision in Docket No. 99F-M1013-ROC, which found the following deficiencies in the painting performed by Complainant:

K. 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.

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

M. 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.[1]

10. On September 21, 1999, an administrative hearing before Administrative Law Judge Diane Mihalsky was conducted in Docket No. 99F-M0616-ROC between the Respondent in this matter against Complainant’s Class C-34 contracting license. The Complainant in this matter, who was the Respondent in that hearing, did not appear at the hearing. In addition to the deficiencies described in Finding of Fact No. 7 above found by Judge Reed attributable to Respondent’s workmanship, Judge Mihalsky recommended to the Registrar that Respondent be required to correct the following additional areas of deficient workmanship in order to avoid the revocation of its contracting license:

A. The plumbing vent pipes on the roof have not been painted. B. The front door has not been finished with varnish or urethane. C. The interior door hinges have paint on them. D. Dirt is embedded in the interior pot shelves.[2]

Judge Mihalsky’s recommended decision was adopted, with modification, by the Registrar. 11. In the instant matter, Complainant alleges that Respondent has violated the provisions of A.R.S. §32-1154(A)(7) due to Respondent’s failure to pay Complainant an unpaid balance in the amount of $11,818.09 for work performed on the Martin project in addition to the payments already made by Respondent. Complainant has itemized the outstanding balance as follows:

men at 10 hours a day 40 man hours a day days to complete the project 160 man hours

$20/hour per contract X $20.00 Interior paint project cost $3,200.00 additional paint projects X 2 = $6,400.00

men at 10 hours a day 20 man hours a day days of repair work 40 man hours $20/hour per contract X $20.00 Repair cost $800.00

Materials bought after 1st paint project $1,499.90

Materials cost deducted from check $1,352.75

Materials cost deducted from check $1,365.42

Uncashed check $400.00

Unpaid balance owed to Complainant $11,818.09[3] (sic)

12. In addition to Complainant’s areas of deficient workmanship set forth in Findings of Fact Nos. 9 and 10 above, there are other examples of Complainant’s poor workmanship:

a) Complainant painted the interior ceilings the specified color for the walls and the walls were painted the specified color for the ceilings. Respondent incurred the expense of repainting those areas correctly. Complainant did use the correct exterior color paint. b) The interior of the residence was painted three times. c) Complainant lacked the financial ability to perform the scope of work on this project. Contrary to the terms of the parties’ contract, Respondent advanced payments of money to Complainant for purchasing materials, who could not otherwise fund those materials. Respondent lent Complainant a generator for use on the project, which Complainant returned when Respondent made an $1,800.00 payment. d) Complainant had irregular attendance on the project.

13. There is credible evidence to support a finding that Respondent has paid a total sum in the amount of $6,442.04 either to Complainant or to vendors on Complainant’s behalf for materials used on the Martin project which were included in the contract price and which were Complainant’s contractual responsibility to pay. 14. Complainant possesses an uncashed check in the amount of $400.00 tendered by Respondent some time ago. Complainant apparently did not want to cash that check due to the parties’ financial dispute. Respondent’s general manager testified at the hearing that the checking account that the check was drawn on has been closed. Respondent’s general manager offered to reissue a check to Complainant in that amount from an active bank account. 15. Complainant failed to produce any written change orders or other credible evidence in support of his claim to an entitlement to the additional sum of $11,818.07 over and above the amount of money already paid by Respondent to Complainant or to vendors on behalf of Complainant.

CONCLUSIONS OF LAW

1. In this administrative proceeding, Complainant bears 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 P2d 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). 2. Complainant failed to sustain the required burden of proving the charges set forth in the Complaint by a preponderance of relevant, substantial and probative evidence, and consequently, the record does not support any finding that Respondent has violated the provisions of A.R.S. §32-1154 (A)(7). 3. The Citation and Complaint in this matter should be dismissed. RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed. Done this day, November 5, 1999

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Recommended Decision of Administrative Law Judge in Docket No. 99F- M1013-ROC, Finding of Fact No. 9. [2] Finding of Fact No. 8 of the Recommended Decision of Administrative Law Judge in Docket No. 99F-M0616-ROC. [3] Exhibit 1. The correct calculation of these amounts totals $11,818.07.

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