ALJDEC decisions subject to certification as final

07F-F0210-ROC · Registrar of Contractors · 2008-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2008. APPEARANCES: Douglas C. Rhodes appeared personally. Asilco, Inc., doing business as Asilco Window and Doors, was represented by its president, Alice Silva. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Asilco, Inc., doing business as Asilco Window and Doors (“Respondent”), is the holder of License No. 188724, a Class K-65 contracting license, issued by the Registrar. 2. Douglas C. Rhoades (“Complainant”) hired Andrus Sterling Construction Services (“Andrus”) as the general contractor for the construction of his residence in Sedona, Arizona. 3. Andrus hired Respondent to provide and install door and window packages for Complainant’s residence. 4. On or about August 3, 2006, Andrus ordered custom door and window packages from Respondent. 5. In October 2006, Complainant terminated Andrus from the project. Andrus informed Respondent of the termination and that Respondent was also terminated. 6. On or about November 1, 1006, Respondent contacted Complainant about the door package. Respondent needed the name of Complainant’s new general contractor. 7. Complainant agreed to provide Respondent with the name of his new general contractor, but asked Respondent to deliver and install the package through his personal superintendent. 8. On or about November 10, 2006, Respondent completed 90% of its scope of work. 9. In January 2007, Respondent completed 98% of its work. 10. On or about January 18, 2007, Complainant stated to Respondent’s staff that there was no contract between the two parties. Complainant told Respondent to go after Andrus for payment. 11. Between January 24, 2007 and May 9, 2007, Respondent had no contact with Complainant. 12. On or about May 10, 2007, Complainant faxed a letter to Respondent concerning warranty claims. These were the first claims made. 13. Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. 14. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Schweiger, performed a jobsite inspection to view Respondent’s alleged deficient workmanship. 15. As a result of the jobsite inspection, Inspector Schweiger issued a Corrective Work Order directing Respondent to perform certain remedial repairs, but also absolved Respondent of any responsibility for other items. 16. Respondent contacted the manufacturer to correct warranty items. 17. Respondent is not responsible for the delivery and/or installation of screens and cranks until Complainant pays for those items and work. 18. Respondent is responsible for repairing any missing or loose trim pieces. 19. Respondent is not responsible for any of the other items in the Corrective Work Order. The evidence is unclear as to whose responsibility it is for those items. 20. On or about July 20, 2007, Complainant disputed the final payment to Respondent in the amount of $13,534.49. Complainant stopped payment for that sum on his credit card. 21. Respondent claims that Complainant has an outstanding balance owed in excess of $21,000.00. 22. The parties’ financial dispute should be resolved in a civil court of competent jurisdiction. 23. Complainant has not filed a Complaint with the Registrar concerning Andrus’s failure to pay Respondent for its work. Complainant contends that he paid his former general contractor in full for Respondent’s work. 24. Respondent did not substantially injure Complainant in this matter. Rather, it appears that Complainant has substantially injured Respondent by not paying the latter for its work on the subject property.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (1). There is no factual basis to support a conclusion that Respondent abandoned the subject project in this matter. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23). 5. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (7). 6. Respondent did violate the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108.

RECOMMENDED ORDER

Respondent’s Class K-065 contracting license shall be suspended on the effective date of the Order entered in Case No. F07-0210 until the Registrar receives written proof, and approves such proof, that Respondent has delivered and installed the missing and/or loose trim pieces as described in the Corrective Work Order issued in this matter. If Respondent accomplishes the aforementioned corrective work on or before the effective date of the Order entered in Case No. F07-0210, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. F07-0210 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 will be 40 days from the date of that certification.

Done this day, April 7, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

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

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