ALJDEC decisions subject to certification as final

08F-4266-ROC · Registrar of Contractors · 2009-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 16, 2009 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its customer service manager, Mel Purchase (“Mel”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant purchased new home construction from Respondent. Complainant alleges a certain deficiency in the materials provided by Respondent and this issue is discussed in the findings below.

2. The only remaining issue brought forward at the hearing by Complainant was the issue of scratches in numerous windows of his home. Complainant asserts that there are several windows that have scratches and the scratches in each window are highly visible and excessive.

3. The following salient facts were adduced at the hearing and are important to note:

a. Complainant testified that he participated in the final walk-thru of his home on December 18, 2007. b. He contends that he saw at least one window with a scratch in it, during his walk-thru. This scratch was repaired (removed) prior to the time he moved into his home. c. Undisputed evidence of record showed that a report was made of the final walk-thru and there is no mention of scratched windows on said report. The report was written by one of Respondent’s employees. d. Complainant closed escrow on his home on December 21, 2007 and received the keys to the home on said date. Nevertheless, he testified that he waited a short period of time, before he moved into the home. Among other things, he wanted to accomplish some painting work, prior to moving into the home. e. Evidence of record showed that Complainant moved into the home sometime during the first week of January 2008. According to Complainant, it was not until he moved into the home, that he first observed that several windows in the home evidenced excessive scratches. The scratches in the windows only became visible at certain times of the day when the sun was shining directly on said windows. f. On or about January 10, 2008, Complainant filed a Warranty Service Inspection Request form with Respondent, indicating that there were scratches on the windows in question. This document was filed approximately twenty days after Complainant had closed escrow and received the keys to the house. g. When he was unable to resolve the window issue, Complainant ultimately filed the instant Complaint with the Registrar of Contractors. h. Upon receiving the filed Complainant, the matter was assigned to one of the Registrar’s inspectors, who appeared at the instant hearing and provided testimony. i. The inspector convened a jobsite inspection on June 3, 2008 and issued a written report, following the completion of his inspection. j. According to the inspector, for window scratches to be deemed to be a workmanship issue, they need to be visible at all times of the day, when viewed from fifteen (15) feet away from the window. k. When the inspector viewed Complainant’s windows, he could see some scratches, when the light was shining perfectly on the window, however, this viewing occurred at less than fifteen (15) feet from the windows. l. The inspector further indicated that the applicable Registrar of Contractors’ guideline, referable to window scratches, provides that scratches must either be reported at the time of the walk-thru or, if no walk-thru is performed, then said issues must be reported to the contractor within ten (10) days of the homeowner taking occupancy of the home. According to the inspector, window glass is a manufactured item for the home and once a homeowner takes occupancy, the contractor no longer has any control over how said item may be treated or abused by a homeowner. m. After completing his visual observation of the issues of the Complaint, and with due consideration for the fact that he could find no evidence that the window scratches were noted on the walk-thru or noticed to Respondent within ten (10) days of Complainant taking occupancy of his home, the inspector issued a Registrar of Contractors’ form RC-C-007 (“FL- 7”). The FL-7 advised the parties that the inspector found that the Complaint should be closed, due to the fact that the issues set forth in his Complaint either met workmanship and industry standards or were beyond the applicable warranty period. n. Based on his disagreement with the above-described findings of the inspector, Complainant requested the instant administrative hearing. o. Dianne Brennan (“Dianne”), a former customer service representative for Respondent, appeared at the hearing and provided testimony. She testified that she came out to Complainant’s home to examine the issue of the scratches and found that they were visible, only if the windows were viewed at just the right angle. She also indicated that Respondent applied the Registrar of Contractors’ guideline that window scratches have to be observable at any time of the day, when viewed from fifteen (15) feet away. p. Dianne further testified regarding Respondent’s owner manual, which is provided to all new homeowners. The manual provides that any issues regarding window scratches must be brought to the attention of Respondent during the time of the walk-thru. q. Christine Regay (“Regay”), Complainant’s girlfriend, appeared at the hearing and provided testimony. She indicated that Complainant told her about the scratches during the first week of January and the windows were not cleaned by Complainant during this period of time. r. Regay admitted that the scratches are only noticeable when the sun is shining on the windows. s. Mel testified at the hearing. He indicated that he is a former inspector for the Registrar of Contractors. In his opinion, since there was a walk-thru before Complainant closed on the home, there was no ten (10) day rule to report window scratches, since they were required to be reported at the time of the walk-thru, pursuant to the applicable owner’s manual, as well as the Registrar of Contractors’ guidelines. t. Mel does not dispute that there are scratches on the windows. Nevertheless, in his opinion since these scratches were not noted or reported at the time of the walk-thru, there was no further warranty on said items once occupancy (control) of the home was turned over to Complainant.

4. The instant record is devoid of any evidence as to how the scratches occurred on the windows in question. The only thing that is clear, is the scratches are only visible in certain daylight conditions and when viewed within less than fifteen (15) feet from the window.

5. In light of the fact that windows are a manufactured item and once the homeowner takes occupancy of the home, a contractor no longer has any control over the care/maintenance of the windows, it would be unreasonable to hold a contractor responsible for the condition of window glass after ownership of the dwelling is transferred . Thus, it is determined and held that the Registrar of Contractors’ guidelines on scratched window issues, as replicated in Respondent’s owner’s manual, are reasonable. Under all of the facts and circumstances presented herein, Complainant failed to sustain the requisite burden of proof necessary to show that the scratched window glass is attributable to Respondent or that said condition constitutes a violation of any of charged sections of the State’s contracting laws.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. 08-4266), together with the Complaint upon which it is based, be dismissed. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, March 23, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors William A. Mundell c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012, Director

By ___________________________

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