ALJDEC

99F-P0009-ROC · Registrar of Contractors · 1999-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 1999. APPEARANCES: APPELLANT: Nancy Roy and Iris Hirsch, co-owners; RESPONDENT: John T. Hummer, sole proprietor.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on May 12, 1999, to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Based on the testimony and evidence of record, and administrative notice of certain events and documents relative to the procedural history of the case, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors:

FINDINGS OF FACT:

1. Complainant Nancy Roy (Roy) is the homeowner, together with co- owner Iris Hirsch (Hirsch), of a summer residence (the “cabin”) at 3687 Enchanted Forest, in Overgaard, Arizona. 2. Respondent John Tim Hummer (Hummer) is a sole proprietor doing business as Two Guns Paint and Drywall (Two Guns), and holder of License No. 090143, Class C-34.

3. Sometime after Respondent’s August 28, 1995 proposal to Complainant Roy, the parties contracted to have Two Guns paint the cabin exterior and decks, which Hummer himself did. 4. This matter arises out of that contract and a complaint dated July 5, 1998, and filed by Roy with the Registrar of Contractors on July 8, 1998. Administrative notice is taken of that complaint, in which Roy alleged a contract date of 11-13-96, a contract amount of $1684.00, a date work last performed of 11-13-96, and the following: Peeling paint - Decks, (All) Cabin exterior. Deck(s) were to be stained using Penafin.

5. On the basis of that complaint, the matter was assigned to the Registrar’s inspector, Mark Schweiger (Schweiger) who conducted a jobsite inspection on August 11, 1998, reset at Respondent’s request. The inspection took place in the presence of Roy; Hummer was unable to attend. 6. As a result of his inspection findings and conclusions, inspector Schweiger then issued a Corrective Work Order (CWO) on September 14, 1998, of which administrative notice is taken. The CWO provided and directed that compliance with the following be accomplished within 15 days:

The painting contracted for the residence does not appear to meet Industry Standards due to peeling, insufficient coverage, inadequate primer and incorrect materials used.

Correct the entire exterior contract paint work by appropriate means.

7. When the matter was not resolved administratively, the Registrar then issued CITATION AND COMPLAINT in Case No. P99-0009 on December 2, 1998, charging Respondent with possible violations of A.R.S. §§ 32-1154.A.3 (and A.A.C. R4-9-108, the workmanship rule), .7, and .23. 8. On December 9, 1998, Hummer timely answered the CITATION AND COMPLAINT, explaining that his materials and labor had been better than workmanlike, despite earlier poor quality work done on the cabin by others, and why he had not used Penafin to stain/seal the decks, but had painted them instead because he could not apply the Penafin over someone else’s earlier work. 9. He also asserted the affirmative defense that over two years had passed between his completion of the work under the original contract prior to his deposit of final payment on April 29, 1996, and the time the complaint was filed on July 8, 1998, although he conceded he had done specific additional work under a new contract in about November 1996. 10. Hearing before the undersigned was then duly scheduled and convened in Show Low, Arizona, on May 12, 1999, at which time testimony was provided telephonically by inspector Schweiger. Roy and Hirsch appeared in person and both testified. Hummer also appeared in person and testified, and offered 3 exhibits: Exhibit A, a Product Data Sheet; Exhibit B, consisting of 6 photographs of the residence he had taken after the complaint in this matter had been filed, and Exhibit C, a copy of a Two Guns’ Job Work Order to Nancy Roy dated August 28, 1995, in the amount of $1684.00. The exhibits were marked and admitted, with Complainant's only objection going to the weight to be given Exhibit A. 11. Roy, primarily, and Hirsch testified to describe the painting work they had contracted Two Guns and Hummer to perform on their cabin exterior and decks for $1684.00, and why the results were not satisfactory, resulting in the filing of the complaint at issue. 12. They conceded that the cabin was a part-time summer residence, with their use during relevant time periods further limited due to illness, and thus, they were limited in their direct observations of when and exactly what had been performed by Hummer. Hirsch’s best estimate of when Hummer had completed his work was based on information from a neighbor near the cabin, who told her that he had last worked in about the fall of 1996. 13. Roy and Hirsch further testified to explain their efforts, particularly by Hirsch, to keep after Hummer to complete or correct his work on the cabin, decks, and an outlying shed and gate. 14. Inspector Schweiger testified to describe his understanding of the terms of the painting contract at issue, his findings at the time of his jobsite inspection of the cabin on August 11, 1998, and the basis for his conclusions that essentially the entire exterior cabin paint needed to be remedied, as well as the two wood decks, which had been painted instead of stained/sealed with Penafin. 15. Hummer testified to describe the original “Job Work Order” proposal (Exhibit C) he had made to Roy in August, 1995, confirming that the contract had not been made for sometime after that, such that he could not recall an exact date work had begun, but that he could confirm he had completed all work on the original contract of $1684.00, no later than April 27, 1996, when he had been paid in full the balance due of $684.00, depositing Complainant's check on April 29, 1996. 16. The specific written terms of the Two Guns’ proposal (Exhibit C) in the amount of $1684.00 forming the basis of the contract were as follows: Paint ext cabin decks and hand rails one coat penafin - siding and overhangs coats - trim 2 coats caulk where needed scrape loose paint fix staples repair some holes where needed price includes labor and material

17. Hummer’s testimony that he was paid the balance due of $684.00 on April 27, 1996, only upon completion of the original contract work, is found credible and consistent with common practice in the construction trades, and would, absent further work being done after that date and within the scope of that contract to toll the statute of limitations, result in a jurisdictional bar to any complaint filed anytime after April 26, 1998. 18. In this case, however, there is no doubt that he did certain additional work after that date, which provides a means of reconciling Complainants’ neighbor’s apparent observation of Hummer working on site in the fall of 1996, or at a time within two years prior to the filing of the complaint. 19. However, Hummer further asserts, both in his written answer to the CITATION AND COMPLAINT, and in his testimony, that such work in the fall of 1996 arose from a separate and subsequent agreement for him to do certain specific work for $60.00. 20. To that end, administrative notice is taken of Two Guns’ Job Work Order dated 11-13-96, which contains the following terms, and the billing amount of $60.00: Spray underside of deck Add on porch from original bid Clean up & repaint hinges on gate Come back in spring and redo deck. Scrape - reprime & roll top coat on deck

21. Hummer testified that he completed this additional work late in 1996, except to “redo deck”, and that he had been paid the $60.00, although he was not certain when. 22. His testimony to that effect was essentially uncontroverted, in that neither Roy or Hirsch disputed accepting the November 13, 1996 “proposal”, or paying the $60.00, but Hirsch, in particular, asserted that she had made continuing efforts to contact Hummer over time (although she could not provide a chronology of those efforts), once she and Roy determined the original work was not satisfactory and required Hummer’s further attention. 23. The undersigned finds Respondent’s November 13, 1996 proposal to have been accepted and paid by Complainants, and to be comprised of a “hybrid” or composite of terms addressing concerns related to the original agreement ( “clean up & repaint hinges on gate”; “Come back in spring and redo deck. Scrape - reprime & roll top coat on deck” ) as well as new terms ( “Spray underside of deck”; “Add on porch from original bid” ), but none of which terms dealt with the cabin’s exterior paint.

APPLICABLE LAW

Arizona Revised Statutes (“A.R.S.”) §32-1154.A provides, in relevant part, 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. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 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.

The Citation and Complaint names A.A.C. R4-9-108 as the rule violation charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards. A.R.S. § 32-1155.A provides the statute of limitations within which time a complaint must be filed with the Registrar of Contractors to invoke its disciplinary authority over its license-holders: A. Upon the filing of a written complaint with the registrar charging a license with the commission, within two years prior to the date of filing the complaint, of an act which is cause for suspension or revocation of a license, the registrar after investigation may issue a citation or upon written request of the complainant may issue a citation directing the licensee within ten days after service of the citation upon him, to appear by filing with the registrar his written answer to the complaint showing cause, if any, why his license should not be suspended or revoked.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must first timely file a complaint with the Registrar within two years of the act complained of, and should such complaint withstand Respondent’s affirmative assertion of untimeliness, then Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). A “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. In this instance, consideration of the evidence as a whole results in the following conclusions by the undersigned: A. First, the original proposal was accepted sometime before the first payment was made to Hummer late in March, 1996; B. Hummer substantially completed work on both the cabin exterior paint and the two decks by April 27, 1996, when he received payment of the balance due under the contract; C. The parties entered into a new agreement on or about November 13, 1996, with work done at about that time, and payment made, based on terms addressing both the original agreement regarding the decks, and additional items not originally contemplated, but in no event did the new agreement address in any way the cabin’s exterior paint; and, D. The complaint at issue was filed with the Registrar on July 8, 1998, or just over two years and two months beyond the date that the work on the original contract was completed, but less than two years after the additional agreement was reached in November, 1996. 3. That additional agreement addressed work already done and also contemplated on the decks, work the undersigned concludes was to address Complainant's dissatisfaction with the decks as originally completed by Respondent, but without mention made of any such dissatisfaction with the other exterior paint of the cabin. In that regard, then, although repair attempts by the contractor do not toll the two-year statute of limitations for filing a claim, such repair work, if and when performed, may in and of itself give rise to an independent claim for which the statute of limitations will again begin to run. Lyon v. Great American Ins. Co., 4 Ariz. App. 596, 422 P.2d 724 (App. 1967); Op. Atty. Gen., No. 179-119 April 25, 1979. 4. It would appear then, and is so concluded, that the additional agreement made, and work done, in and after November 13, 1996, gave rise to an independent claim (with the two years in which to file a complaint running from that time), to remedy and complete the decks in a workmanlike manner, with the complaint of July 8, 1998 thus timely filed. 5. Complainant has therefore demonstrated, by a preponderance of the evidence based on the conclusions of the Registrar’s inspector, that Respondent violated A.R.S. § 32-1154.A.3 and the workmanship standards of A.A.C. R4-9-108, and committed a wrongful act pursuant to A.R.S. § 32- 1154.A.7, such that appropriate remedial work is necessary on the finish of the cabin decks. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d (1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). 6. However, given substantial completion of the cabin’s exterior paint by the end of April, 1996, with the complaint filed in July, 1998 thus untimely as beyond two years, as asserted by Respondent, with the evidence insufficient to give rise to any independent claim within the statute of limitations, the undersigned must therefore conclude that any consideration of the merits of the cabin’s exterior paint is beyond the authority of the Registrar in this disciplinary proceeding. 7. Then, with regard to the violation charged of A.R.S. § 32- 1154.A.23, the undersigned concludes that Respondent’s failure to take corrective action within the time allotted was with valid justification, given his prompt assertion, after the complaint was filed, that it was untimely.

RECOMMENDED DECISION

On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order (thirty-five days after issuance), Respondent’s Class C-34 license be suspended until the Registrar receives proof that Respondent has accomplished appropriate and effective corrective action to remedy the defects in the workmanship of the finish of the cabin decks. In the alternative, IT IS FURTHER RECOMMENDED that, if Respondent accomplishes the remedial action on or before the effective date of the Registrar’s Order, then no license suspension shall be imposed, and the entire CITATION AND COMPLAINT in Case No. P99-0009 shall be closed. Done this day, June 1, 1999.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826