ALJDEC decisions subject to certification as final

09F-1263-ROC · Registrar of Contractors · 2009-06-11

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 27, 2009

APPEARANCES: Complainant appeared and testified on his own behalf, accompanied by his wife Elizabeth, who also testified; Respondent was represented by Service Representative Jim Porter, accompanied by witness Jason Tinonga, Aegis Window & Door, LLC, who is a window manufacturer.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Charles Hendricks brings this action alleging that windows installed by Respondent Reliant Window are not the proper type. Respondent maintains that they are. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits A, B, and C.[1] The parties presented evidence and testimony. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding no violation of law. FINDINGS OF FACT 1. Respondent Reliant Window is the holder of a class B- general residential contractor license (No. ROC097892) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general residential construction of a structure or appurtenance, except for certain specialty contracting such as electrical, plumbing, swimming pools, etc.[2] Respondent’s Qualifying Party is Larry Eiteljorg. 2. In February 2008, Complainant hired Respondent to “measure, custom build, and install twelve windows with Low E glass, argon gas, and screens. Picture windows do not have screens. Color is white. Tempered glass where necessary.” Respondent performed the work. 3. Complainant brings this action claiming that he did not receive the windows promised; specifically, that the windows installed do not contain Low E glass. The ROC Inspector who performed a jobsite inspection could not confirm or deny the presence of Low E glass. Therefore, it remains Complainant’s burden to prove the claim. 4. At hearing, Complainant presented his electric bills from April 2008 through November 2008.[3] He contends that his bills would have gone down if there was Low E glass installed, but they did not. This evidence is speculative. There could be many reasons Complainant’s electric bill fluctuated. Exhibit A is not persuasive. 5. Respondent called as a witness Jason Tinonga, General Manager, Aegis Window & Door, LLC. He testified that his company manufactured the windows that Respondent installed in Complainant’s house and that the windows are Low E. His testimony is credible. 6. Complainant testified that he was told by Respondent’s salesman that if he bought the windows, his electric bills would decrease. This language is not part of the written contract Complainant signed, but was a verbal statement allegedly made by the salesmen during the sales process. However, in paragraph 26 of the written contract, signed by Complainant, there is a provision stating that only the written terms of the contract are part of the agreement. Thus, no verbal agreements are allowed by the written contract between the parties. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has not met that burden. 2. Complainant has not shown that Respondent failed to comply with the terms of the written contract. The only person knowledgeable about the windows who testified at the hearing was Jason Tinonga, and he testified persuasively that the windows met the requirements of the contract. 3. The evidence does not support Complainant’s claim. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Reliant Window in case 09-1263 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 will be 40 days from the date of that certification.

Done this 11th day of June 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

. . .

Copy mailed this ___ day of June 2009 to:

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

By ___________________________ ----------------------- [1] Exhibits B and C are photographs. [2] See, Arizona Revised Statutes § 32-1102 and Arizona Administrative Code R4-9-103 for a description of license classifications. [3] Exhibit A. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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