ALJDEC decisions subject to certification as final

05F-1982-ROC · Registrar of Contractors · 2005-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 18, 2005 APPEARANCES: Rick Grossglauser, President of Ricky G’ (“Complainant”), appeared on behalf of Ricky G’s. Jennie Chavarria, Office Manager for Tashco Industries, Inc., doing business as Heritage Windows (“Respondent”), appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael L. Barth _____________________________________________________________________ findings of fact 1. On the basis of allegations in Complainant’s Complaint of substandard replacement of etched glass in a front entry door (scratches in the glass) and installation of rear entry door contrary to specifications (improper location of door handle), the Registrar of Contractors (“ROC”) cited Respondent for violating A.R.S. § 32-1154(A)(2) (Departure form specifications), (3) (failure to comply with A.A.C. R4-9-108 (requirement that a contractor perform work in a workmanlike manner)) and (7) (Commission of a wrongful act causing substantial injury). 2. The following facts were undisputed: a. Complainant had entered into a written contract with Respondent to supply and install windows and doors in a model home/office it had built. b. The contract included the supply and installation of the glass front entry door and the rear entry door at issue c. Jeco Glass Craft Etching Company (“Jeco”), a subcontractor recommended by Respondent, had been contracted directly by Complainant, to etch the tempered glass for the front entry door. d. Per the written contract which was drafted by Respondent, Respondent was to supply and transport the glass to and from Jeco, seal and install the glass into the front entry door on a ”best effort only basis.” e. Jeco etched an intricate pattern of a dramatic desert landscape into the tempered glass. f. Upon installation, a problem in the etching was found by Complainant for which Respondent was not responsible. g. Per a written contract drafted by Respondent, Respondent agreed for a price of $553.00 to, on a “best effort“ basis only, supply the replacement glass, transport the replacement glass to and from Jeco for etching and install the replacement glass into the front entry door. h. Per the contracts presented by the parties, a deposit of $276.00 was due on placement of the order for the replacement glass with the balance due to Respondent on delivery. i. Complainant contracted Jeco directly to etch the replacement glass, and the glass per Complainant’s agreement with Respondent was transported to and from Jeco for that purpose by Respondent. j. Although glass is ordinarily installed in a door or window by Respondent at its factory because factory conditions are more conducive to installation than field conditions, Respondent installed the replacement glass into the front entry door at the model home instead of the factory.

k. The replacement glass sustained scratches at the outer edges while it was being handled by Respondent. l. Respondent agreed to remove the replacement glass and attempt to buff out the scratches at its factory and reinstall. m. Although Respondent presented testimony that the buffing had improved the appearance of the glass, the scratches in the replacement glass remained visible from 15’ when viewed at certain angles. n. Respondent had been paid in full for the supply and installation of the rear entry door. o. Although Respondent had failed to install the handle on the rear entry door at the location specified, Respondent refused to correct said departure from specifications until Complainant paid the balance of $276.00 owing on the contract for replacement of the front entry etched glass. 3. Respondent presented credible and uncontroverted testimony by Ms. Chavarria and Augie Aiello, a former employee of Respondent, that the replacement glass despite the scratches complied with standards promulgated by ASTM, but did not set forth the ASTM standards to which they referred. Given their failure to do so, this tribunal finds said testimony to be conclusory and, therefore, to lack sufficient probative value for purposes of demonstrating compliance with those standards. In any event, given that the ROC has promulgated standards applicable to this issue, this tribunal finds the ROC standards to be controlling. 4. Respondent also contended that having only agreed to replace the etched glass on a “best effort” basis only, it was not required to meet the State’s minimum workmanship standards but only required to give its best effort and that it had done so. 5. The contract language “best effort” is ambiguous. Said contract language can be construed to have several meanings including performance within the State’s minimum workmanship standards. Given the ambiguity of the contract language and that the contract for replacement of the glass was drafted by Respondent, this tribunal finds that the contract language “best effort” did not exempt Respondent from compliance with the State’s minimum workmanship standards. 6. ROC representative, Phil Coscia, testified that although the scratches were observable in daylight at a distance of 15’, in his opinion the installation met minimum workmanship standards as the scratches were not observable by him in his normal standing straight ahead position. 7. Mr. Coscia explained that if scratches in glass are observable at a distance of 15’ from a normal standing straight ahead position, then the glass installation falls below minimum workmanship standards; however, if the scratches are only observable at a distance of 15’ from certain angles or under certain lighting conditions, then it is the ROC’s position that the glass installation meets minimum workmanship standards. 8. Mr. Coscia acknowledged that the foregoing restriction on the position from which glass should be observed for the purpose of determining whether glass installation meets the minimum workmanship standards could result in inspectors of different heights coming to different findings in that regard. 9. Mr. Coscia further acknowledged that the minimum workmanship standard relative to glass installation as published by the ROC does not refer to the foregoing restriction on the position from which the glass should be observed for the purpose of determining whether the installation meets minimum workmanship standards but only states that scratches must be observable in daylight at a distance of 15’ to be in violation of the minimum workmanship standards. 10. Despite the opinion of Mr. Coscia that Respondent’s replacement of the glass in the front entry door met minimum workmanship standards, this tribunal finds otherwise for the following reasons. First, the glass at issue here is unlike ordinary window glass. Having been etched with an intricate pattern of a dramatic desert landscape, the front entry door glass serves as a focal point of the model home, and like art work, was designed to capture the attention of customers as they entered the model home. Consequently, like persons examining art work, persons entering the house would likely examine the desert landscape pattern from a variety of angles or positions. Second, the ROC standards as written do not require the scratches to be observable in a normal standing straight ahead position but only observable at a distance of 15’. Third, imposition of the foregoing restriction on the position from which the glass should be observed for purposes of determining whether it was installed within minimum workmanship standards could lead to inconsistent findings, especially given the nature and purpose of glass involved here. While the scratches at issue may not have been observable by Mr. Coscia in his normal straight ahead standing position, they may have been observable by a shorter or taller inspector in their normal standing position. 11. This tribunal finds Complainant’s withholding of the payment of the balance due on the front entry door was justified as a result of Respondent’s substandard workmanship in replacing the etched glass in the front entry door and refusal to take any further steps to properly correct the scratches after its efforts to buff out the scratches failed. 12. Even if Respondent’s replacement of the glass had met minimum workmanship standards, Respondent’s refusal to correct the handle on the rear entry door was not justified by Complainant’s non-payment of the balance owing for replacement of the front entry door glass. Respondent’s work on the rear entry door had been paid in full by Complainant. Not having replaced the glass in the front entry door within minimum workmanship standards, Respondent failed to deliver a completed product and, therefore, was not entitled to the balance of the contract price. Conclusions of Law 1. Interpretation of contract is a question of law for court. Dixon v. City of Phoenix, 173 Ariz. 612, 616, 845 P.2d 1107, 1111 n.2 (App. 1992). In the event of an ambiguity, an instrument is to be most strictly construed against the party who prepared it. Polk v. Koerner, 11 Ariz. 493, 533 P.2d 660 (1975). Language used in a contract is ambiguous when it can reasonably be construed to have more than one meaning. Cardon v. Cotton Lane Holdings, 173 Ariz. 203, 841 P.2d 198 (1992). 2. The contract language “best effort” was ambiguous as it could be construed to have more than one meaning including meaning performance within minimum workmanship standards. Hence, said language did not exempt Respondent from compliance with minimum workmanship standards. 3. Having failed to replace glass in the front entry door within minimum workmanship standards, Respondent violated A.A.C. R4-9-108, and in turn violated A.R.S. § 32-1154(A)(3), which requires compliance with rules adopted by the ROC. 4. Having departed from specifications in the installation of the door handle in the rear entry door without the consent of Complainant, Respondent violated A.R.S. § 32-1154(A)(2). 5. Having committed the foregoing violations of the contracting laws, Respondent committed wrongful acts causing Complainant substantial injury in violation of A.R.S. § 32-1154(A)(7). Recommended Order Commencing on the effective date of the Order entered in this matter by the ROC, Respondent’s Class C-65 license shall be suspended until the ROC receives written proof that Respondent has complied with either of the following conditions: 1. Respondent has corrected the etched glass in the front entry door and the improperly located door handle on the rear entry door in a workmanlike and professional manner; or 2. Respondent has entered into other mutually acceptable arrangements to resolve the foregoing dispute with Complainant. If the ROC receives written proof that Respondent has complied with either of the foregoing conditions on or before the deadline identified above, then the above-ordered suspension of Respondent’s Class C-65 license shall not be imposed and Case No. 05-1982 shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days from the date of said certification. Done this day, August 25, 2005.

______________________________________ Michael L. Barth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Registrar of Contractors Israel G. Torres ATTN: Alicia Guerra 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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