ALJDEC

00F-M1523-ROC-com · Registrar of Contractors · 2001-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 31, 2001. APPEARANCES: The Complainant, Cliff Shultz, appeared personally. The Respondent was represented by its attorney, Chandler W. Travis, Esq. 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. This matter came on for a compliance hearing to determine whether Respondent complied with the corrective work ordered by the Registrar of Contractors to be performed by Respondent as a condition to avoid suspension of its contracting license. 2. The Registrar of Contractors previously adopted the Recommended Decision of Administrative Law Judge Anthony Halas in this disciplinary action. 3. The Registrar ordered that “Respondent’s Class K-05 license be suspended until the Registrar receives proof that Respondent has accomplished, upon reasonable access, completion of the contract, and supply of all appropriate warranties.”[1] 4. The completion of the contract involved Respondent filming two windows. 5. Respondent is found to have complied with the Registrar’s order to film those two windows. 6. Respondent applied two separate film products on Complainant’s windows during the performance of the overall project, each product having its own separate warranty. 7. On or about November 21, 2000, Respondent’s counsel at the time, Jason P. Sherman, Esq., forwarded a copy of the completed 3M warranty to Complainant for the 3M film used on the project. 8. The 3M warranty for the Scotchtint™ window film lists the product number, run number and the square footage of glass coverage, that being square feet. The warranty also describes the locations where the product was used as the foyer and 2nd floor bedroom. It does not describe the location of the product used to film the window in the dining room. 9. It is determined that the 3M warranty for the Scotchtint™ window film does not accurately reflect that the product was used in Complainant’s dining room window. Respondent contends that the dining room film is included in that warranty’s total square footage measurement. However, a clear reading of the warranty does not necessarily support that contention given that the warranty describes the specific locations where the product was used. Respondent is responsible for providing Complainant with either a new 3M warranty, an amended 3M warranty reflecting that the product was also used in the dining room or a letter from the manufacturer confirming that the film used in the dining room is covered by the warranty because it is included in the total square footage of glass coverage listed in the warranty. 10. Respondent also used an Hanita window film product to cover some of Complainant’s windows. 11. On or about November 7, 2000, Respondent’s then counsel mailed Complainant a blank warranty form for the Hanita film. The warranty states that “all information on this form must be completed for warranty validation.”[2] 12. The blank Weststar Window Film, Inc., Residential Limited Warranty No. 401108 form requires Respondent to complete two of three sections of the form. 13. Respondent is responsible for providing the following information under the Dealer Information section:

a) Installation date. b) Dealer number. c) Installing Dealer’s name, address, telephone number, facsimile number, e-mail address. d) Dealer’s contact e) Dealer’s signature and date of execution.

14. Respondent is responsible for completing the product information portion of the warranty form with the following information:

a) Film description. b) Master roll number[3]. c) Total square feet of film used. d) Total cost of installation. e) Indicate the type of structure. f) Answer “Yes” or “No” to the statement: This window film meets the manufacturer’s published Film-To-Glass Criteria for free glass breakage and seal failure warranty. g) Dealer Initials.

15. Complainant is responsible for furnishing the following information on the warranty form:

a) Residential/Purchaser Name. b) Installation address. c) Home and work telephone numbers. d) facsimile number. e) e-mail address. f) Customer signature and date of execution.

16. Respondent contends that it cannot process the Hanita warranty because Complainant has not completed the customer information section of the form and returned it. Complainant counters that he is weary to complete his portion of the form without Respondent having first completed its portions of the form, especially the product information section. Respondent has not explained why it has not completed its portions of the form. Based upon the entire record in this matter, Complainant’s request to have the Respondent first complete the dealer’s portions of the form before he completes it is not unreasonable. Complainant’s desire to review the contents of the completed dealer’s sections of the form is appropriate, especially in light of the omission of the specific location in the dining room in the 3M warranty where that product had been applied. 17. Respondent is responsible for presenting Complainant the Hanita warranty form completed and executed by the Respondent. 18. Respondent has not complied with the Registrar’s prior Order insofar as Respondent has failed to present Complainant with the required appropriate warranties. 19. A review of the official records of the Registrar of Contractors reveals that Respondent’s license is currently suspended by operation of law because of non-renewal of the license. Those records also reveal that the Registrar suspended Respondent’s license on February 28, 2001 as a result of this disciplinary action and lifted that suspension on March 19, 2001.

CONCLUSIONS OF LAW

1. Pursuant to the provisions of A.R.S. § 32-1154(C), the suspension of Respondent’s Class K-05 license by operation of law does not deprive the Registrar of Contractors of jurisdiction to render a decision imposing disciplinary penalties on that license. 2. Pursuant to the provisions of A.R.S. § 32-1154(B), the Registrar of Contractors is authorized to temporarily suspend, with or without imposition of conditions, a contracting license for proven violations of A.R.S. § 32-1154(A). Respondent has failed to supply Complainant with appropriate warranties as required by the Registrar’s prior Order to avoid the suspension of its license. Notwithstanding the current suspension of Respondent’s Class K-05 license by operation of law, the evidence of record supports the Registrar’s suspension of that license until it receives proof that Respondent has supplied Complainant with the complete and appropriate warranties.

RECOMMENDED ORDER ON COMPLIANCE HEARING

In view of the foregoing, it is recommended that Respondent’s Class K- license be suspended until the Registrar of Contractors receives written proof that Respondent has supplied Complainant with the accurate warranties. Done this day, August 13, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

----------------------- [1] Recommended Decision of Administrative Law Judge at page 6. [2] Respondent’s Exhibit G. [3] The warranty states that it is not valid without master roll numbers.

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