ALJDEC decisions subject to certification as final

08F-T0268-ROC · Registrar of Contractors · 2008-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2008, at 9:00 a.m. APPEARANCES: The Complainants appeared through Marlo McCartney. Respondent Orozco Company Inc. (Corp.) appeared through its authorized representative, Jacob Orozco. Respondent Elite Glass and Mirror LLC (LLC) appeared through its authorized representative, Phil Burgess. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. Respondent Orozco Company Inc. (Corp.) is the holder of a Class C-36 License (No. 111107) issued by the Registrar of Contractors. 2. Respondent Elite Glass and Mirror L.L.C. (LLC) is the holder of a Class K-65 License (No. 204368) issued by the Registrar of Contractors. The Respondent’s Class K-65 License was suspended on May 9, 2008 for lack of bond. 3. These matters were consolidated because the two Complaints involved nearly identical workmanship issues in the same residence and necessarily involved the same witnesses and evidence. 4. These are residential matters where the two Respondents performed construction work as subcontractors on a new residence constructed for the Complainants. 5. The general contractor for the residence (Pathways Development) is no longer in business and has filed bankruptcy. 6. There was no dispute that the Complainants experienced water leaking around some of the windows in their new residence and the Complainants suffered interior moisture damage as a result of the leaking around the windows. 7. The Complainants were dissatisfied with the leakage around some of their windows and filed formal Complaints, against both of the Respondents, with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaints, an assigned Agency Inspector conducted on-site inspections. 9. On September 27, 2007, the Inspector moved to close the Complaint against Respondent Orozco Company Inc., on the following basis: “1. Window leaks were not a stucco issue, stucco contractor agreed, as a customer courtesy, to remove stucco around dining room windows for other contractors to determine cause of leaks. 2. Stucco separating from home and common wall, not a stucco issue, block walls constructed by another. 3. Stucco separating from wall that was extended, not a stucco issue, block walls constructed by another. Note: Stucco contractor at jobsite inspection agreed to repair cracks listed on complaint number T08-0263 filed against Pathway Development.” 10. There was no dispute that Respondent Orozco Company Inc., agreed to remove the stucco around the leaking windows and if the problem was determined to be related to a stucco issue to correct any stucco problems. 11. On October 3, 2007, the assigned Agency Inspector issued a Corrective Work Order to Respondent Elite Glass and Mirror L.L.C. (LLC) which provides, in pertinent part, as follows: “the following action must be taken no later than 15 calendar days from the date of this letter. 1. Leaks in dining room upper and lower windows and bedroom #2 windows: Jobsite water test found leaks around windows. Subcontractors, Rolling Shutters & Orozco Stucco agreed to remove shutters and stucco around windows to help find leaks. Contractor to correct by appropriate means.“ 12. Respondent Orozco Company Inc. then removed the stucco around the leaking windows and discovered that the windows were not properly flashed. 13. Respondent Elite Glass and Mirror L.L.C. (LLC) then corrected the flashing around the windows. 14. Despite the correction by Respondent Elite Glass and Mirror L.L.C. (LLC) the windows continued to leak. 15. On December 3, 2007 the Complainants filed a request for a formal hearing. 16. The window manufacturer then caused the removal and replacement of the leaking windows, including new flashing and stucco around the windows, and the leakage problem was eliminated. No further corrective work on the windows is necessary. 17. The Complainants seek restitution for their costs in repairing the interior damage to their residence in the sum of $737.00 and for the sum of $1,440.00 for Orozco Company Inc.’s cost of removing and replacing the stucco around the leaking windows by Respondent Orozco Company (Inc.). 18. Respondent Orozco Company’s representative, Jacob Orozco testified that Respondent Orozco Company Inc. (Corp.) was expecting payment from the general contractor rather than the Complainants. 19. Respondent Elite Glass and Mirror’s representative, Phil Burgess, testified that Respondent Elite Glass and Mirror had properly installed the flashing around the Complainants’ windows and that the flashing had been removed by someone else. 20. Credible testimony and evidence, presented at the consolidated hearing, established that Respondent Elite Glass and Mirror L.L.C. (LLC) failed to properly flash the leaking windows and the said Respondent is responsible for paying, as restitution, the Complainants’ costs for repairing the interior water damage in their residence in the total sum of $737.00. 21. Notice is taken of the prior License record of Respondent Elite Glass and Mirror L.LC. (LLC) with the Registrar of Contractors.

CONCLUSIONS OF LAW 1. The credible evidence of record established violations by Respondent Elite Glass and Mirror L.L.C. (LLC) of the provisions of A.R.S. (32-1154 (A) (23) (Failure to take appropriate corrective action) and (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. The Complainants failed to sustain their burden of proof to establish that Respondent Orozco Company Inc. (Corp.) violated the applicable charged sections of the State’s Contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by Respondent Orozco Company Inc. (Corp.) of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDed orders 1. In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Class K-65 License (No. 204368) of Elite Glass and Mirror L.L.C. shall be revoked unless the Registrar of Contractors receives proof that Respondent Elite Glass and Mirror L.L.C. (LLC) has properly paid the sum of $737.00 to the Complainants as restitution for their costs of repairing the interior moisture damage in their residence.. It is further recommended that if the Respondent properly accomplishes the above described action, on or before the effective date of this Order, then the above provided License revocation shall not take place and this matter be closed. 2. In view of the forgoing, it is recommended the Complaint, together with the Citation upon which it is based, against Respondent Orozco Company Inc. (Corp.) 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 Orders will be 40 days from the date of the certification. Done this day, October 17, 2008.

______________________________________ M. Douglas Administrative Law Judge

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

Armando Contreras, Director Registrar of Contractors 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com