ALJDEC

00F-M1808-ROC · Registrar of Contractors · 2001-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2001. APPEARANCES: Debbie and Gary Sheets appeared on their own behalf. Respondent was represented by Dennis Wilenchek, Esq. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________

Complainants allege that Respondent violated A.R.S. §32-1154(A)(3) (failure to meet standards of workmanship articulated in A.A.C. R4-9-108) and A.R.S. §32-1154(A)(7) (committing a wrongful or fraudulent act that results in substantial harm to another). While the Complainants alleged two bases for their allegations in their complaint, at the time of the hearing they indicated that they only wished to pursue the complaint with respect to the sliding glass door. Complainants specifically stated that they did not at this time wish to pursue the other area of difficulty broached in their complaint, the hairline cracking on the stucco. Accordingly, the hearing proceeded only as to the issues surrounding the sliding glass door. Based on the evidence adduced at the hearing, the undersigned finds that Complainants have failed to demonstrate by a preponderance of the evidence that Respondent’s construction or repair of the sliding glass door was not completed in a workmanlike fashion as required by administrative regulation. Furthermore, the evidence presented does not show by a preponderance that Respondent acted in a wrongful or fraudulent manner. FINDINGS OF FACT 1. Respondent is a licensed general contractor in the State of Arizona. Respondent built a home in Gilbert for Complainants. Complainants took possession of the home in April, 1999. 2. Complainants apparently encountered difficulties with the operation and functioning of a sliding glass patio door that was installed in their home. The door is comprised of a frame and track upon which two sliding glass bypass doors ride. Complainants had previously filed a complaint regarding other issues in the home as well as the operating characteristics of the door. That complaint, however, was withdrawn as a result of an agreement entered by the parties. As a result of that agreement, two new bypass glass doors were installed in the existing frame and door track. 3. Complainants contend that in May, 2000, the door again began to not function properly. They contend that at that time, they noticed that the bottom track of the door had two dents or holes which caused the sliding bypass doors to not function properly. 4. As a result of the new problems they were having with the door’s operation, the Complainants again contacted Respondent to fix the problem. According to Mrs. Sheets, she spoke to a person named Jason who is an employee of Respondent. Mrs. Sheets testified that on the day Jason contacted her, he indicated he would inspect the door to ascertain what if any problem existed. He further indicated that he would not attempt to fix the door at that time if any repair work was needed. Mrs. Sheets then testified that on that same day, Jason contacted her after having looked at the door and indicated that the door was operating properly. While not entirely clear from the testimony, it appears that on that day, two workers employed by the subcontractor who installed the door simply filled the two holes with some type of putty. 5. Complainants testified that in fact after Jason’s visit, the door still did not properly function. They again contacted Respondent and this time, Gary Kelly, an employee of the subcontractor that installed the door, came out to the residence to effect further repairs. Mr. Kelly testified that when he first operated the door, the bypass doors were not operating smoothly but were hitting each other. Mr. Kelley adjusted the bypass doors to cause them to operate smoothly. Mr. Kelley was also informed about the two dents or holes in the bottom track of the sliding door. Mr. Kelly indicated at that time, and again indicated during the hearing, that the dents were caused by the negligence of the homeowner. Mr. Kelley indicated that based on his twenty plus years of installing sliding glass doors that the only way this could have happened would be if the door had suddenly and abruptly been stopped while in the process of sliding, causing the entire weight of the door to slam down on the tracks. The telltale sign, according to Mr. Kelley, are the dents or holes that were left in the track. Mr. Kelly testified that these two dents or holes matched in size and position the two wheels of the door upon which the door rests. For these reasons, Mr. Kelly opined that the damage to the track did not result from some defect in the door or frame . rather, it must have come from some type of abuse. 6. Complainants steadfastly maintain that they have not damaged the door and that the problem must stem from some defect in the door. 7. Dissatisfied with Respondent’s conclusions regarding the door Complainants filed the second complaint which resulted in the instant hearing. The Registrar’s office assigned Inspector Dennis Cook to the case. Mr. Cook made a job site inspection at the home on August 3, 2000. Mr. Cook operated the door and determined that it was functioning smoothly and properly. He further found that the aesthetics of the door were not inappropriate. Nor could he ascertain anything improper about the door’s installation. 8. On April 12, 2001, Mr. Cook conducted a prehearing inspection of the door. Again he found it to be operating properly. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (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. * * * AAC R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The Complainants have the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (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). 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 (6th ed. 1990). 3. The evidence fails to establish by a preponderance of the evidence that the workmanship on the door frame or door fell below the standard of workmanship prescribed by the standards set forth in A.C.C. R4- 9-108. 4. Complainants have not alleged that Respondent has committed a fraudulent act. Instead, their allegation of the violation of A.R.S. §32- 1154(A)(7) rests entirely on their contention that Respondent’s workmanship fell below the minimal standards promulgated in A.A.C. R4-9-108. Because Complainants have failed to demonstrate any violation of the workmanship standards, they cannot prove a violation of A.R.S. §32-1154(A)(7) in this case. There simply has been no demonstration of any wrongful act on the part of the Respondent in this case. Respondent’s response in this case—repeated trips to the job site and making appropriate adjustments to make the door function properly and smoothly—is all that could or should be required of Respondent in this case. Accordingly, Complainants’ allegation of a violation of A.R.S. §32-1154(A)(7) has not been proven by a preponderance the evidence. 5. Complainants further contend that Respondent’s course of conduct with regards to repair of the door has been inappropriate. The undersigned, however, does not concur with that contention. It is obvious that animosity has developed between the parties. It is also obvious, however, that each time Complainants have complained about the door, Respondents have come out and inspected the door and attempted to take what Respondent’s employees in good faith believed to be appropriate action. Unfortunately, the parties have disagreed as to what is the root cause of the problem of the door. The mere fact that Respondent has refused to do exactly what the Complainants wanted in order to correct a problem does not mean that Respondent has acted in a wrongful manner. Respondent has a good faith basis for believing that the dents in the door track (which have not impaired its operational quality) were not the result of any poor workmanship and Respondent’s refusal to outright remove and replace the door frame does not mean that a violation of A.R.S. §32-1154(A)(7) has occurred. RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Director dismiss the citation and complaint in this matter. Done this day, May 2, 2001.

______________________________________ Gregory L. Hanchett Administrative Law Judge . . .

. . .

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

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

By ___________________________

-----------------------

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