ALJDEC decisions subject to certification as final

2009A-3466879-ROC · Registrar of Contractors · 2010-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19, 2010 at 1:00 p.m. APPEARANCES: Complainant Angle Homes Inc. appeared through Rick Angle, its Superintendent; Respondent Burroughs and Sons Construction Inc. appeared through Joe Burroughs, officer and qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On November 18, 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC190276, Class B-1 for general commercial contracting to Respondent Burroughs and Sons Contracting Inc., a corporation. On November 20, 2007, the Registrar issued License No. ROC239153, Class B-1 for general commercial contracting to Complainant Angle Homes Inc., a corporation. On April 30, 2009, the Registrar received a complaint from Complainant against Respondent’s license, which alleged that, in December 2008, the parties had entered into a written subcontract in the amount of $82,685.00 for “[c]oncrete slab, construction of metal building and installation of windows & doors” at a commercial property at 9450 Commerce Dr. in Kingman, Arizona. The specific complaint items were as follows: #1. Back door lockset will not lock. Faulty set. #2. Missing striker plates for deadbolts on front and back door.[1]

[Footnote added.] The Registrar sent a copy of the complaint to Respondent for its immediate attention. The Registrar’s Inspector William Redman performed a jobsite inspection and, on May 21, 2009, issued a Corrective Work Order to Respondent, requiring it to perform certain corrective action within 15 days, in relevant part as follows: 1. Install the dead bolt strike plates on the front and side man doors in a good and workmanlike manner.

2. The side man door is warped more than ¼ inch. Replace the door in a good and workmanlike manner.

On May 29, 2009, the Registrar received a letter from Respondent with a copy of a check in the amount of $159.00 to Complainant, which Respondent stated was “for repair of work described in complaint.” The Registrar closed the complaint. On July 20, 2009, the Registrar received a letter from Rick Angle on behalf of Complainant to reopen the complaint, in relevant part as follows: I am writing this at the request of our customer, A Z Hydraulics. To this date the items of the dead bolt strike plates and the warped back door have not been completed. I have made several appointments after numerous calls to meet Burroughs at the job site. We have met and they said they have received all the required materials to complete the job, but have failed to show for two appointments to install them. . . .

The Registrar provided a copy of Mr. Angle’s letter to Respondent and informed it that the complaint had been reopened. On September 29, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(7), (23), and (3) (namely A.A.C. R4-9-108). On October 8, 2009, the Registrar received Respondent’s written answer to the Citation and Complaint, which again provided a copy of its check for $159.00 to Complainant. According to Respondent, “[t]he door was not warped. It was the door jam. It has been replaced and fixed.” The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A videoconference hearing was held on May 19, 2009 from the Registrar’s Kingman office. Inspector Redman testified. Complainant presented the testimony of Mr. Angle and submitted seven exhibits. Respondent presented the testimony of Joe Burroughs, its qualifying party and an officer, and William P. Sowers, the employee who had performed work to comply with the CWO. Hearing Evidence Complainant contracted with A Z Hydraulics to construct a metal commercial building. Complainant subcontracted to Respondent construction of the metal commercial building. Respondent was to install prefabricated parts furnished by the manufacturer of the building according to the plans. A Z Hydraulics’ owner is a woman named “Shirley.” Its manager is “Jeff.” Another man worked at the metal building after Respondent constructed it. After A Z Hydraulics’ owner complained about difficulties with opening, closing, and locking the two doors and threatened to make a complaint to the Registrar against Complainant, it made the complaint quoted above against Respondent. The check for $159.00 that Respondent gave Complainant after it filed the complaint was to reimburse Complainant for two invoices that Complainant had submitted to Respondent on May 22, 2009: (1) Invoice No. 36139 dated May 15, 2009 from A & S Doors and Lights for “strike plates” and “comm. lever” in the amount of $89.00; and (2) Invoice No. 447 dated May 22, 2009 from Desert Edge Carpentry Inc. to “address[] problems related to warranty on steel building” in the amount of $70.00. Mr. Angle testified that, after the striker plates described on the invoices were installed, the deadbolts still did match up to the holes in the door jambs. The materials and services covered by the $159.00 payment did not resolve the problems that A Z Hydraulics was having with the front and side doors at the metal building. Inspector Redman and the parties agreed that the side man door was not warped. The problem in the door’s operation was caused by the jamb not providing appropriate support for the door to operate smoothly. In August 2009, Respondent installed a U-channel on one side of the side man door on the metal building, which provided additional support for the door. Mr. Burrough’s testified that the U-channel was not included in the engineered plans for the metal building or included in the materials that the manufacturer provided to construct it. On August 10, 2009, Mr. Angle on behalf of Complainant sent a letter to Respondent, informing it that the problems with the doors still had not been resolved to the satisfaction of the owner of A Z Hydraulics, in relevant part as follows: Last week your employees installed the dead bolt strike plates on the front and side doors and attached a beam to the side door frame to help straighten it. We appreciate you efforts in getting these items corrected. The owner says the back door closes and locks much better. However, the door is still bowed and the deadbolt on the front door is too difficult for the owner to lock. The men can lock it, but she cannot.

The [CWO] from the Registrar states that the side man door needs to be replaced. I have also spoke [sic] to your employee about adjusting the deadbolt on the front door, installing a support beam on the front door, and fixing the seal on the front window as it howls when the wind blows.

Please have somebody contact me to have these items resolved.

Mr. Angle testified that he left voicemail messages for Respondent on August 13 and 18, 2009, requesting additional repairs. Respondent did not respond to the voicemail messages. Mr. Burroughs denied having seen Complainant’s August 10, 2009 letter until shortly before the hearing. He did not recall receiving any voicemail messages. He testified that he believed that Respondent’s repairs in August 2009 had resolved the problem. Mr. Sowers testified that Respondent had sent him to work on the front door three times and that he had gone to A Z Hydraulics to perform repairs to both doors a total of five to seven times. Mr. Sowers testified that, after he had been told that the men who worked at A Z Hydraulics could open the door but the female owner could not, he had performed extra work on the door and the owner of A Z Hydraulics had told him that the operation of the doors was satisfactory. Inspector Redman testified that he had spoken to the owner of A Z Hydraulic and that she had confirmed that Respondent had not repaired the operation of the two doors to her satisfaction and that she had threatened to file a complaint to the Registrar against Complainant if it did not repair the operation of the doors. On February 4, 2010, Complainant sent a letter to the Registrar, in relevant part as follows: The Respondent reimbursed us for missing hardware for the front and back doors in May of 2009. They did not replace the door jam [sic], they only installed one U channel on the right side of the door to help realign the jam and keep it from moving. According to Burroughs’ employee, each door was to have two (2) U channels.

We fixed the following items:

1. Broken seal on the front office window.

2. Back door; fixed dent, took warp out of door and repainted door.

3. Installed three U channel steel beams. This included drilling into the concrete, epoxying [sic] bolts to the floor and welding the tops of the channels to the horizontal beam above.

Angle Homes is seeking reimbursement for materials and labor for these items. We have included an itemized bill totaling $722.20 which covers the cost to fix the items listed above.

Complainant attached to its letter an undated invoice for 4.5 hours spent by Mr. Angle and Clyde Pease at a combined hourly rate of $90.00/hour for both men, mileage, and $196.00 in materials, for the total invoice amount of $722.20. The invoice did not itemize time spent or materials used in the three repairs described on the February 4, 2010 letter. Mr. Sowers denied telling Mr. Angle that U-channels were required on both sides of both doors. Mr. Sowers testified that he told Mr. Angle that U- channels were not on the plans for the metal building that Respondent had built for Complainant but that U-channels were required on the plans for other metal buildings that Respondent had built. Mr. Burroughs denied having received the February 4, 2010 letter. He had been in the medical center at that time. Mr. Burroughs testified that the repairs on the invoice attached to Complainant’s February 4, 2010 letter were for upgrades to the metal building, rather than for repairs to Respondent’s original scope of work. In any event, Mr. Burroughs testified that Respondent could have performed the repairs for “about $100.00.” CONCLUSIONS OF LAW Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] Construction is not a perfect art and, generally, a contractor should be afforded an opportunity to correct deficient workmanship before the Registrar suspends, revokes, or otherwise disciplines its license. The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[6] The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation can no longer be remedied by corrective work.[7] Restitution may be appropriate when the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages.[8] In this case, the operation of the doors was correctible and in fact has been corrected. Complainant was not required to repair the doors quickly to mitigate collateral damages or to avoid a potential health or safety issue. Complainant has established that the doors on the metal building did not operate as intended and that business exigencies required Complainant to repair the doors to the owner’s satisfaction or risk a complaint against its own license. Complainant also has established that Respondent did not fully comply with the CWO in the time allowed after receiving notice that its repairs were unsatisfactory. Complainant has not established that plans for the building required U- channels on either side of the door or that the deficient operation of the doors resulted for Respondent’s poor workmanship, as opposed to a deficiency in the plans because they did not require U-channels. Complainant also has not established that applicable industry standards required installation of U-channels on the doors of metal prefabricated buildings, even if the plans do not provide for such installation. Complainant therefore has not borne its burden to establish that Respondent violated A.R.S. § 32-1154(A)(7),[9] (23),[10] or (3)[11] in its construction of the metal building and failure to repair the doors to comply with the CWO. Complainant’s February 4, 2010 invoice also included repair of the broken seal on the front window and a dent in the back door, which were not items on the original complaint or addressed by the CWO. Even if Complainant had established that Respondent had violated one of the charged statutes and restitution was an appropriate remedy, the absence of any itemization on the invoice would have prevented calculation of restitution for the items of workmanship at issue, as opposed to other repairs. Complainant may be entitled to some civil damages in a judicial forum for Respondent’s poor workmanship or departure from industry standards in installing the doors and for its failure to timely repair the installation of the doors. But, based on the evidence that was presented at hearing, it is not entitled to any relief in this administrative forum. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, that the Registrar dismiss Case No. 2009-3466879 against Respondent Burroughs and Sons Construction Inc.’s License No. ROC190276, Class B-1, without prejudice to Complainant Angle Homes Inc.’s right to file a civil action for breach of contract or malpractice in a judicial forum. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, May 27, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The two doors at were described in the record as “the front and back door” or “the front and side door.” [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [7] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). [8] In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater where, although the contractor had made several attempts to repair the heater, he could not make it provide a habitable degree of heat. See id. [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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