ALJDEC

02F-S0020-ROC · Registrar of Contractors · 2002-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|NANCY VICKREY, |§| | |Complainant, |§|CASE NO.: s02-0020 | | |§| | |-v- |§|DOCKET NO.: 02f-s0020-ROC | | |§| | |License No. 104596, Class C-05 of|§|RECOMMENDED | |Kurt Konrad Obermeier, dba |§|DECISION AND ORDER | |KANMAR GUTTERS (Indiv), |§| | |Respondent. |§| | | |§| | | |§| | | |§| |

HEARING: Monday, February 26th, 2002, at 8:30 a.m. APPEARANCES: The complainant, Nancy Vickrey, appeared in her own behalf. The respondent, Kurt Konrad Obermeier, appeared in his own behalf. ADMINISTRATIVE LAW JUDGE: Grant Winston.

The administrative hearing of this matter was held by the Office of Administrative Hearings, in Sierra Vista, Arizona. Testimony was heard and other evidence admitted, and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein, Kurt Konrad Obermeier, doing business as Kanmar Gutters, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C- License Number 104596. 2. The complainant herein, Nancy Vickrey, contracted with the respondent on or about October 30th, 1999, for the respondent to install seamless gutters to her Hereford, Arizona residence. Respondent installed the gutters in accordance with the parties’ contract, completing his work in early November of 1999. Complainant communicated her satisfaction with the product and installation to the respondent at the time the work was finished. 3. Nothing more was said or done between the parties until around May of 2000, when complainant telephoned the respondent to inform him that the gutters were sagging, buckled or crushed (the exact words she used are disputed). In any event she informed him that the gutters were in some fashion buckled or bowed in two separate places. One area had only a slight bend outward from the house, and the other area was more seriously broken. Respondent assured complainant he would promptly visit her residence to inspect, and he did so. 4. When respondent arrived and saw the two areas of the gutters he concluded that the damage was not a result of a defective product or installation, but had to have been caused by external forces acting on the gutters, most probably someone on the roof. Complainant rejected this hypothesis. Respondent suggested that he contact the Registrar of Contractors’ office and request a courtesy inspection be performed and opinion rendered by one of the registrar’s inspectors, as an independent third party. Complainant assented to this. 5. Registrar of Contractors Inspector Mike Nieves conducted a courtesy inspection pursuant to respondent’s request in June or July of 2000. Both parties were present when the inspector did this. Based on his inspection of the gutters, Inspector Nieves informed both parties that, while he could see the obvious damage which was the subject of complainant’s concern, he could in no way conclude that the damage was a result of a poor product or installation by the respondent. 6. Nevertheless, the respondent, at the courtesy inspection, in a gesture of goodwill, offered to repair both damaged areas at his own expense. This he offered even after the inspector had corroborated his lack of responsibility for the damage. Respondent explained to complainant, in detail, what procedure he would follow to make the corrections. Complainant agreed to allow the respondent to make the corrections, but asked that he withhold making them until after she had returned from an upcoming trip. Respondent agreed to wait for complainant to let him know when to return and make the corrections. 7. Respondent next heard from the complainant not by way of communication requesting his return to make the corrections, but by way of notice of her having filed this administrative complaint against his license on August 16th, 2001. 8. The complaint was assigned to Inspector Nieves who conducted a job-site inspection on September 6th, 2001. Both parties were present at the job- site inspection. Once again respondent stated his position, and his willingness to make corrections to the complainant’s damaged gutter. He explained the repair procedure, and complainant agreed to that procedure as the method of repair. Based solely on respondent’s agreement to repair, Inspector Nieves issued a Corrective Work Order to the respondent to make the corrections he agreed to make within 15 calendar days from the date of his CWO which was September 6th, 2002. 9. Respondent did return to complainant’s residence and did make the repairs to both areas of the gutters within the time allowed by the CWO. 10. Complainant was satisfied with one repaired area, but was dissatisfied with the repair work performed by respondent at the second, more severely damaged, area. At that area respondent had used a product manufactured by Alcoa, the same manufacturer of the gutters. The product was a piece commonly used in the industry to make such repairs. It is a rubbery, pliable piece of black material to which is affixed on either end short lengths of metal, all in the shape of the gutter. The damaged portion of the gutter is removed and this piece is attached in its place. This is the procedure respondent followed, and the procedure he had previously explained to complainant. 11. Complainant requested an administrative hearing. Pursuant to that request this hearing was held. 12. Inspector Nieves testified at the hearing. As a part of his testimony he stated that he had conducted a pre-hearing job-site inspection, viewed the repairs performed by the respondent, and opined that those repairs were of good workmanship, and respondent had fully complied with his CWO. 13. Complainant testified at the hearing that she did not understand that the repairs would have the appearance they have. She thought the work would appear differently. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent herein is charged in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 3. Complainants have the responsibility to carry the burden of proof. They must prove their case by a preponderance of the evidence. A.A.C. R2-19- 119. See also: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985) (the standard of proof is that of the “preponderance of evidence”). 4. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the Registrar of Contractors. The rule cited in this case is A.A.C. R4-9-108, Workmanship Standards. 5. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contracting laws of the State of Arizona, without valid justification, within a reasonable amount of time, after receiving written directive from the registrar to do so. The written directive in this case is the CWO. 6. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. 7. At this time there can be no conclusion that the respondent violated any of the cited statutory subsections relative to this complaint. There is no evidence of poor workmanship; respondent did comply with the CWO in a timely manner, and there is no evidence of any fraud or wrongful action by the respondent. . . . . . . RECOMMENDED ORDER In view of the foregoing, it is hereby recommended that Citation and Complaint number S02-0020 be dismissed. Done this day, March 12th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488