ALJDEC decisions subject to certification as final

05F-M2219-ROC · Registrar of Contractors · 2005-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 7, 2005 APPEARANCES: Gregory Jones, Esq. appeared on behalf of the Complainants; Mark Holroyd appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Marianne T. Bayardi _____________________________________________________________________

The question presented by this matter is whether Respondent San Tan Distributing Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Respondent San Tan Distributing Inc. (“Respondent”) is the holder of a Class B- License (No. 192871) issued by the Registrar of Contractors (“ROC”). Mark Holroyd is Respondent’s authorized representative. 2. Complainants Sam and Pat Obregon (“Complainants”) are the owners of the residence located at 4753 S. Strike It Rich Drive, Gold Canyon, Arizona (“the Home”). 3. On February 4, 2005, Complainants met with Dave Campbell, Respondent’s salesman, to discuss their desire to replace two butt glazed windows at the northeast corner of the Home. Although Complainants did not choose to install new butt glazed windows, they sought to retain the “open” look of the original windows. The original windows did not have a corner post at the point where the two windows came together. Complainants acknowledged that the new windows would have a corner post; however, they wanted the corner post to be as unobtrusive as possible. 4. On February 4, 2005, Complainants entered into a contract with Respondent for Respondent to install two Milgard Picture Windows at the Home. The total contract price was $2,700.00. On February 4, 2005, Complainant paid Respondent $2,000.00. The remaining $700.00 was to be paid upon completion of the window installation. The contract also contained the following notation: “would like install ASAP.” 5. Respondent ordered two Milgard Z-Bar Picture Windows for installation at the Home. The windows were aluminum framed thermal picture windows that required special order from the Milgard factory. 6. On April 19, 2005, several of Respondent’s employees arrived at the home with two Milgard Z-Bar Picture Windows. Complainants claimed the foregoing windows were not the same windows they had purchased. Complainants would not allow Respondent to install the windows at the Home. The new windows had fins around the exterior. The installation of the windows would require tearing out some portion of the stucco surrounding the existing window frames. Respondent’s employees left the Home with the windows. 7. On April 19, 2005, Mr. Obregon contacted his credit card company and requested that the $2,000.00 deposit he paid to Respondent be reversed. 8. Subsequent to April 19, 2005, the parties held numerous discussions concerning the Milgard Z-Bar windows and Respondent’s proposed method of installation, including necessary finish work. Respondent proposed to install an aluminum corner post that would match the color of the window frames. 9. Respondent made several additional trips to the Home and made continuing good faith efforts to satisfy Complainants. However, the parties could not agree on a methodology and finished appearance that was acceptable to Complainants. 10. On June 21, 2005, Respondent delivered the Milgard Z-Bar Picture Windows to the Home. 11. On June 21, 2005, Mr. Obregon sent Respondent a letter advising that: “I want you to know we do not wish to have any further business association with your company, and do not want you installing any windows.” 12. On June 22, 2005, Complainants filed the instant Complaint against Respondent with the ROC. The Complaint alleged, in pertinent part: We ordered 2 Milgard frame thermal picture windows. San Tan ordered 2 Milgard Z-Bar windows which they wanted to install. We refused installation of these windows and they are in our garage.

13. On July 25, 2005, Complainants requested the instant administrative hearing. 14. Respondent filed a written response to the Complaint on August 2, 2005. 15. On August 11, 2005, the ROC issued Citation and Complaint No. M05-2219 alleging that Respondent had violated A.R.S. § 32-1154(A)(1), (A)(2) and/or (A)(7). 16. Complainants contracted with a separate contractor to install different windows in the Home. Said installation took place on September 1, 2005. 17. The instant Administrative Hearing took place on November 7, 2005. 18. At hearing, Complainants alleged that Respondent improperly replaced the Milgard Picture Windows that they ordered with Milgard Z-Bar windows. Complainants maintained that Milgard Z-Bar windows were not equivalent “picture” windows. Respondent presented credible evidence that the contract called for “thermal picture windows.” 19. Mike Winterboer, Respondent’s engineer, testified that the Milgard Z-Bar windows were, in fact, Milgard Picture Windows. Moreover, Mr. Winterboer testified that the contract is purposely silent as to the type of Milgard Picture Window to be installed so that he, as the engineer, could choose the type of Milgard Picture Window most appropriate for the Home. Mr. Winterboer determined that Milgard Z-Bar Picture Windows were appropriate to install in an existing stucco home because of the configuration of the fin around the perimeter that aids in creating a proper moisture barrier. Based on the foregoing, the Administrative Law Judge finds that the Milgard Z-Bar windows were acceptable under the contract. 20. Complainants next alleged that the Milgard Z-Bar windows were inappropriate because the installation would cause destruction of the existing stucco. Complainants had not previously contemplated or agreed to installation that would damage the existing stucco. Respondent presented credible evidence that the type of installation proposed was an appropriate method for installing windows in a pre-existing stucco home. The Administrative Law Judge finds Respondent’s proposed installation method was acceptable. 21. Complainants alleged that the corner post Respondent proposed to install was unacceptable because it looked too “commercial” and did not match the surrounding stucco. Respondent endeavored to engineer a corner post that would match the color of the Milgard Z-Bar Picture Window frames; however, the corner post proposed was still unacceptable to Complainants because it failed to match the style of the Home. The Administrative Law Judge finds that the contract was silent as to any stylistic specifications for the corner post. Consequently, the Administrative Law Judge does not determine whether the corner post proposed by Respondent was aesthetically acceptable. The Administrative Law Judge does not intend by her findings, to amend the contract or to impose additional terms that are not set forth therein. The evidence established that the corner post proposed by Respondent was one method offered in an attempt to satisfy Complainants; as the homeowners, Complainants were ultimately free to accept or reject Respondent’s proposal. 22. The evidence established that Respondent was undertaking good faith and ongoing efforts to satisfy Complainants; however, Complainants ultimately terminated Respondent and did not allow it to install the windows. Complainants elected to hire another contractor to install different windows at the Home. Consequently, the Administrative Law Judge finds that Respondent is not required to perform any further work with respect to the windows. 23. At hearing, Complainants indicated that Respondent had disputed their non-payment with Complainants’ credit card company. Complainants sought to have the foregoing credit card dispute terminated. The foregoing requested relief is not an appropriate remedy in the instant administrative disciplinary proceeding. CONCLUSIONS OF LAW In this proceeding, Complainants bear the burden to prove, by a preponderance of the evidence, that Respondent is subject to discipline for a violation of A.R.S. § 32-1154(A)(1), (A)(2) and/or (A)(7) as charged by the ROC in its July 22, 2005 Citation and Complaint (No. M05-2013). See A.A.C. R2-19-119. 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). 3. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for abandoning a contract without legal excuse. The Administrative Law Judge concludes that Complainants denied Respondent access to install the windows and subsequently terminated their relationship with Respondent. Based upon the foregoing, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32- 1154(A)(1). 4. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes of the state…in any material respect which is prejudicial to another without consent of the owner…and without consent of the person entitled to have the particular construction project or operation completed in accordance with such plans or specifications…” The Administrative Law Judge concludes that the contract contains the general term “Picture Windows” and does not delineate further the type of windows. The weight of the credible evidence established that Milgard Z-Bar windows are a type of “Picture Window,” as set forth in the contract. Based upon the foregoing, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32-1154(A)(2). 5. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act ... resulting in another person being substantially injured.” The Administrative Law Judge concludes that Complainants failed to establish that Respondent committed any wrongful or fraudulent act that substantially injured Complainants. Consequently, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32-1154(A)(7). 6. Based on the foregoing, the Administrative Law Judge concludes that there is no evidence that Respondent committed any violations of A.R.S. § 32-1154(A). Therefore, no grounds exist for the ROC to impose any discipline against Respondent’s Class B- License. RECOMMENDED ORDER Based on the foregoing, it is recommended that no discipline be imposed against Respondent’s Class B- License (No. 198271) and that Citation No. M05-2219 and the Complaint upon which it is based, be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification. Done this day, November 28, 2005

______________________________________ Marianne T. Bayardi Administrative Law Judge

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

Registrar of Contractors Israel G. Torres ATTN: Alicia Guerra 800 W. 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