ALJDEC decisions subject to certification as final

2010A-24854427-ROC · Registrar of Contractors · 2013-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 8, 2013

APPEARANCES: Complainant appeared on her own behalf; Respondent appeared on his own behalf.

WITNESSES: Scott Deering, ROC Inspector Melanie Yansick Michael Patt Randall Berardi

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship with regard to installation of doors at Complainant’s house. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order that Respondent cause some minor corrective work to be performed by a properly licensed contractor. FINDINGS OF FACT 1. Respondent was the holder of License No. C-30.200493-R, a specialty residential finish carpentry license issued by the Registrar. As a sole proprietor, Respondent was also the Qualifying Party for the license. The license has been expired since November 2010. 2. The evidence shows that in November 2008, Complainant and her friend Michael Patt went to Respondent’s place of business looking to replace some doors in her home, primarily a set of French doors. They discussed the project, but no final decision was made at that time. Respondent reasonably believed that Mr. Patt was involved in the project with Complainant; he was not told otherwise. 3. Shortly thereafter, Complainant had to go out of town for a family emergency, but she was in telephone contact with Respondent. On December 16, 2008, Michael Patt let Respondent into the house to take measurements and give her an estimate, which he did. She accepted it over the telephone. Then, without her knowledge, Mr. Patt signed a contract with Respondent, apparently on behalf of Complainant, for the project at that same price. The description of the work in the written contract states: “Provide and install 1 6068 one 9080 French doors. Both to be Marvin Integrity with SDC Grilles, low E, keyed alike multipoint locks. All new trim and casing.” 4. The contract terms called for payment of half at start and the other half at completion. Complainant paid the first half and Respondent performed the work through a subcontractor who performed the installation. 5. When Complainant returned, she was not happy with the work. Her main problem with it was that she believed that the configuration of the doors was to be the same as the old doors, but they were not. 6. She filed an ROC complaint listing five issues and there was an inspection. A Corrective Work Order (“CWO”) was issued on February 19, 2010, that stated the following:[1] 1. Great room exit door was to be configured with two opening doors and one fixed panel door and instead has two fixed panels and one operating door- contractor to correct by the appropriate means 2. Master bedroom door does not operate properly- corrected prior to the inspection, no action required of the contractor 3. Rear exit doors’ locksets were to be keyed alike and are not- contractor to correct by the appropriate means 4. Complainant never received a copy of the contract- contactor to correct by the appropriate means 5. Respondent has refused to rectify the problems- contractor to correct by the appropriate means

This CWO was based on input only from Complainant because Respondent did not attend the inspection. Therefore, the ROC Inspector accepted Complainant’s premise that the door configuration was not as agreed. 7. At hearing, Respondent testified that there were diagrams showing door configuration attached to the written contract. He provided a copy of those diagrams and the record shows that he sent those diagrams to the ROC on October 27, 2010.[2] Those diagrams are dated December 16, 2008. The doors were installed in accordance with those diagrams. 8. Respondent testified that he gave the documents to Mr. Patt when he signed the contract. Mr. Patt does not recall receiving those documents. This is not surprising, given that the events are over four years old. 9. Complainant argues that she never agreed to the configuration of the doors as they have been installed. She thought they would be the same as the doors that were being replaced. However, she has no written record of that. Her understanding is based entirely on verbal conversations with Respondent over the telephone. 10. The evidence does not show any contract other than the written contract signed by Mr. Patt for work on Complainant’s house. Respondent reasonably believed that Mr. Patt was acting on behalf of Complainant when he signed the contract, especially when Complainant paid the first payment. Thus, the written contract signed by Mr. Patt set the scope of Respondent’s obligations to Complainant. 11. The doors have been installed in accordance with the written diagrams and the written contract. 12. Respondent admits that the rear exit doors need to be keyed alike (CWO Item 3) and he is willing to cause the subcontractor who installed them to do so. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] Complainant has met that burden only with respect to the keying of the rear door locksets (CWO Item 3). 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(2) (requiring compliance with plans, specifications, and building codes), A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). The evidence shows that Respondent failed to properly key the rear door locksets (as stated in CWO Item 3) as required by the contract. That is a violation. However, the evidence also shows that the doors were installed in accordance with the written documents and that Mr. Patt received a copy of the contract on Complainant’s behalf. Thus, there is no violation for CWO items 1 and 4.[6] 3. Pursuant to A.R.S. § 32-1154(C), expiration of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license in this matter. The appropriate sanction in this matter is to require Respondent to cause the corrective work described above in CWO Item 3 to be performed by a properly licensed contractor. If Respondent does not do so in a timely manner, the license should be revoked. In addition, a civil penalty is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that License No. C-30.200493-R, held by Randall Matthew Berardi dba RMB Craftsman Enterprises be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives, and accepts, written proof that Respondent has caused the correction noted in CWO Item 3 above to be performed by a properly licensed contractor. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocation shall not take place and Case No. 2010-24854427 (formerly 10- 2485) shall be closed. IT IS FURTHER RECOMMENDED that, along with the provisional suspension above, Grand Construction LLC pay a civil penalty of $250.00 to the ROC pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty, on or before 30 days following the effective date of the ROC Order entered in this matter, shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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, May 23, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Bold type is the inspector’s directive; plain type is recitation of the issue. [2] They are date-stamped and part of the complaint file. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [6] CWO Item 2 was corrected before the inspection. CWO Item 5 is a redundancy.

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