ALJDEC decisions subject to certification as final

04F-L0323-ROC · Registrar of Contractors · 2004-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 30, 2004 APPEARANCES: The Complainant appeared on his own behalf Dan Gilbank, vice president, appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. On May 5, 2002, the Complainant moved into his newly constructed home in Lake Havasu City, Arizona. 2. The Respondent subcontractor had installed dual pane “Low E glass” windows and sliding patio door, in the home. 3. By December, 2003, the Complainant noticed the glass panels of the patio door were beginning to show purple. He contacted the general contractor who in turn had the Respondent check on the problem. 4. The Respondent ordered replacement panels for the patio door from the manufacturer. 5. On March 18, 2004, the Respondent replaced the patio door panels. The glass tint in the replacement was bronze and did not match the rest of the windows which are grey. The glass was scratched and as a consequence of compounded errors by the person installing the replacement panels for the patio door, part of the sill plate had to be cut to make it fit. 6. The Respondent then replaced the sliding panel of the patio door. 7. On April 30, 2004, the disagreement between the parties became contentious and the Respondent stated the manufacturer should attend to the problem.[1] 8. On May 3, 2004, the Complainant filed the complaint with the Registrar of Contractors (Registrar of Contractors). 9. On May 10, 2004, Inspector Cliff Corlett (Corlett), did a jobsite inspection. On the same day, Corlett issued a Corrective Work Order (CWO) which essentially stated the sliding glass doors were mismatched[2] and that the Respondent had arranged for the manufacturer to send a representative to address the problem. 10. On May 28, 2004, the manufacturer had the patio door replaced by a contractor other than the Respondent. 11. Subsequently, the manufacturer had the bathroom window replaced and delivered kitchen and garage windows for later replacement.[3] 12. Corlett did a pre-hearing inspection on November 23, 2004. He noted the replacement of the patio doors and the bathroom window. The replacement kitchen and garage windows had been delivered but not installed. Conclusions of Law The Citation and Complaint alleges violation of A.R.S. 32- 1154(A)(3)/A.A.C. R4-9-108, workmanship standards, (A)(7), a wrongful act with substantial injury, and (A)(23),corrective action. The burden of proof is on the party asserting the right, claim or entitlement A.A.C. R2-19-119, also see Culpepper v State, 187 Ariz. 431 (App 1996). 1. The CWO addressed only the patio door panels. These were replaced by the manufacturer at the behest of the Respondent. The other windows were not part of the CWO and therefore are not considered a part of this particular allegation. There is no violation of (A)(23). 2. The failure of the glass tint cannot be directly attributed to the Respondent as a workmanship error. It is granted that the initial replacement of the patio door was not properly done. The improper placement of a screw and subsequent ¼ inch cut of the sill plate was shoddy installation by one of the Respondent’s workers. However, the problem has now been corrected. There was no evidence that the Complainant was substantially injured thereby. 3. At this juncture, the Complainant’s primary issue concerns the Respondent’s turning the matter over to the manufacturer and the Respondent’s conduct which may have been less than what one would wish under the circumstances. The evidence shows that the parties became confrontational and ceased having a satisfactory working relationship. There is insufficient evidence to establish that the Respondent was so at fault as to warrant a violation, or engaged in wrongful conduct by referring the matter to the manufacturer for resolution. Had the manufacturer not responded by correcting the problem, the outcome might well be different. The Registrar cannot impose a sanction for this issue unless there has been some type of substantial injury to another. In this case the injury was the delay in getting the work done and apparent insult to the Complainant in his own home[4]. These do not constitute substantial injury based on the evidence presented in this case. Recommended Order It is recommended that the Citation and Complaint upon which it is based be dismissed.

Done this day, December 6, 2004

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Both parties asserted the other was out of line. The Complainant testified the Respondent was verbally hostile and impolite while in the Complainant’s home. The Respondent testified the Complainant was in his personal space and aggressive. [2] Corlett testified the tint did not match and the glass was scratched. [3] Corlett testified he had not included these other windows as a part of the CWO. [4] This does not minimize the right of both parties to be treated appropriately. A person in their own home is generally granted some deference and a person doing work in good faith to correct a problem in the home is generally granted some respect.

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