ALJDEC decisions subject to certification as final

06F-M2115-ROC · Registrar of Contractors · 2007-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 7 March 2007 APPEARANCES: Complainant: Hien and My Le. Respondent: Jim Schmillen, General Counsel, Younger Brothers Door and Trim; Bobby Carillo, Service Manager, Younger Brothers Door and Trim. Others: Jack Clark, Inspector, Arizona Registrar of Contractors; Neil Brogren, A n B Home Inspections; Bijan Eshani and Pam Pershing Leto, neighbors of Complainant. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Complainant contracted to have a home built by Bezar Homes. After its completion, Complainant felt certain items were still unsatisfactory. Among them were certain french doors in the master bedroom and breakfast room supplied by Respondent. Complainant filed a complaint with the ROC, and as the result of an inspection by ROC Inspector Clark on 6 June 2006, a Corrective Work Order dated 12 June 2007 (“CWO”) was issued. 2. The CWO indicated two items of concern: 1) the glass in the french doors in the master bedroom was defective, and 2) the glass in the french doors in the breakfast room was defective. Inspector Clark ordered item 1 corrected by the Respondent, but ordered no action regarding item 2. Respondent replaced the master bedroom doors. Respondent also planned to replace the breakfast room doors at Bezar’s request as a courtesy to the customer (Complainant), with Bezar paying the cost of the doors; however, the replacement was cancelled when Complainant filed the complaint with the ROC. As a result, Respondent and Bezar elected to let the ROC decide if the doors needed replacing. 3. Inspector Clark indicated he did not see any defects in the glass of the breakfast room doors at his inspection of 6 June 2006 that exceeded the ROC’s workmanship standard for glass that states there should be no scratches in the glass that are observable in daylight from 15’ or more. He again could not observe any scratches in the glass from 15’ on his pre-hearing inspection of 6 March 2007, although he could see some small scratches in the glass from a closer distance that he opined were not outside the workmanship standard. Inspector Clark testified that the 15’ observation standard was not one where a person stood and stared at a particular spot pointed out to the person on a piece of glass to see if they could see the defect. The defect must be of such significance that a casual observer can easily detect the flaw from a distance of 15’ without someone pointing it out to them. This is the standard used by the ROC. He further indicated that glass defects normally need to be reported within 10 days of occupancy of a home or replacement of the glass due to the fragile and delicate nature of glass, which can be easily damaged by the elements and during cleaning. Mr. Carrillo also observed the glass and did not believe it exceeded the 15’ visibility standard. He noted that during the inspection, Complainant had marked each flaw in the glass with a blue paper marker to highlight its presence for the Inspector, which Mr. Clark objected to. 4. Neighbors of Complainant, Ms. Leto and Mr. Eshani, testified that they had entered Complainant’s home at his request, were shown the defects in the breakfast room door glass, and could see the scratches in the glass from 15’. Ms. Leto stated the flaws were all on the outside of the glass (the glass being a double-paned vacuum-sealed insulated pane), on the outdoor side of the glass. Also, Mr. Brogren, a home inspections consultant hired by Complainant to inspect his home, stated he could observe the defects in the glass from 15’. All three of these witnesses observed the glass sometime after Inspector Clark’s inspection.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). The evidence adduced at hearing clearly indicated that the glass in question had some flaws in it. All witnesses agreed that there were scratches in the glass, but there is considerable doubt as to whether those flaws exceeded the standard set by the ROC. In cases such as this, the skill and expertise of the ROC Inspector who is professionally skilled and knowledgeable of the standards imposed by the ROC (as opposed to the standards adopted by other construction or manufacturing industry groups or associations) must be given a certain deference. Accordingly, Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32-1154(A).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the ROC that this citation, together with the complaint upon which it is based, be dismissed, that no action be taken against Respondent’s license, and that this case be remanded back to the ROC for further appropriate disposition. Done this day, March 23, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

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