ALJDEC decisions subject to certification as final

2010A-308471696-ROC · Registrar of Contractors · 2011-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 8, 2011

APPEARANCES: Complainant Joe Giovanni appeared on behalf of Complainants; Respondent was represented by CEO and Qualifying Party Doug Mack.

WITNESSES: Jeff Wills, ROC Inspector Joe Giovanni Charyn Palmisano, Supervisor, Community Revitalization Division, City of Glendale Doug Mack

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action alleging poor workmanship and failure to comply with contract specifications by Respondent. The complaint concerns remodeling work done by Respondent at Complainants’ home. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with marked Exhibits 1 and 2 submitted by Complainants at hearing. During the hearing, the parties settled one of the issues in dispute, described below, concerning installation of the family room door. This left only one issue for determination: whether the windows installed by Respondent meet the specifications stated in the contract between the parties. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violations, but acknowledging Respondent’s agreement to do corrective work in settlement of the issue concerning the family room door. FINDINGS OF FACT 1. Respondent is the holder of license B-3.128499-R, a general residential remodeling and repair contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general remodeling and repair of existing homes, except for specialty work such and electrical, plumbing, and other specialties. Doug Mack, the company’s CEO, is the Qualifying Party on the license. 2. In 2009, Complainants applied for the City of Glendale’s Homeowner Rehabilitation Program, managed by the City’s Community Revitalization Division (“Division”). Upon approval into the program, the Division works with a homeowner and writes specifications for the work that needs to be done at a house. The homeowner obtains bids and enters into a contract for the work, which the Division then pays for. The Division oversees the work done by the contractor as well. 3. Through that program, in October 2009, Complainants and Respondent entered into a contract for remodeling many areas of Complainants’ home, including replacing windows. With regard to window replacement, the specifications in the contract called for: “Windows will be (BETTER BUILT or EQUAL).”[1] 4. Respondent performed the work and was paid in full in January 2010. 5. In March 2010, Complainants filed a complaint with the ROC about the workmanship of the remodeling work Respondent had done. ROC Inspector Jeff Wills performed two jobsite inspections and issued a Corrective Work Order (CWO) on May 28, 2010, and an amendment to it on July 14, 2010. Respondent performed corrective work between the two CWOs, and the second CWO contained only one item (out of three) that required correction. That item (#1), concerning the family room door, was settled at the hearing after discussion between the parties, Inspector Wills, and Charyn Palmisano from the City of Glendale. Respondent agreed to perform corrective work on the family room door and Complainants accepted the promise as settlement of the issue. 6. The CWOs also referenced an issue that did not require corrective action, an issue regarding the quality of the replacement windows installed by Respondent. The issue in contention at the hearing was whether the windows installed met the specification of “(BETTER BUILT or EQUAL).” 7. Ms. Palmisano testified at the hearing about the Division and its management of the Rehabilitation Program. When asked about the windows, she testified that the windows installed by Respondent met the City’s standards and program standards. When asked if the windows met the specifications of the contract, she replied “Yes.” 8. ROC Inspector Jeff Wills testified at the hearing. He stated that Complainants’ concern is the energy efficiency of the windows installed, but that the City of Glendale does not have code requirements for window energy efficiency. Inspector Wills went to Home Depot to look at windows and research the issue. He determined that the windows installed at Complainants’ home meet the requirement of “(BETTER BUILT or EQUAL).” 9. Complainants introduced evidence showing the NFRC (National Fenestration Rating Council) label from the windows that Respondent installed.[2] The NFRC label shows a Solar Heat Gain Coefficient (“SHGC”) of 0.71.[3] Inspector Wills verified that the label was from the windows installed by Respondent. 10. Complainants also submitted a copy of a different NFRC label showing an SHGC of 0.68, which means that more heat is blocked by the window with sticker showing 0.68 than the one with the label showing 0.71. The label showing 0.68 is from a manufacturer called “MI Windows and Doors.” Joe Giovanni testified that this was equal to a “Better Built” window, but his testimony lacks credible corroboration. The NFRC label from MI Windows and Doors is without adequate foundation. The evidence does not show that the label is from a Better Built window. 11. In addition, the evidence does not show that the specification “(BETTER BUILT or EQUAL)” includes a requirement that the SHGC be equivalent to a “Better Built” window. From what little the evidence shows, “Better Built” windows could come with various SHGC ratings. 12. Complainants have failed to prove the claim that the specification of “(BETTER BUILT or EQUAL)” was not met by Respondent. 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. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(23), and (A)(3); namely A.A.C. R4-9- 108. Subsection (A)(2) requires contractors to build in accordance with plans, specifications, and building codes. Subsection (A)(23) requires contractors to comply with Corrective Work Orders. Subsection (A)(3), by way of A.A.C. R4-9-108, requires contractors to comply with minimum workmanship standards. 3. The evidence does not support finding a violation of subsection (A)(2). Two independent witnesses testified that the windows Respondent installed met the specification “(BETTER BUILT or EQUAL)” in the contract. In addition, Complainants’ documentation lacks adequate foundation to be given significant weight. 4. With regard to the one CWO item requiring corrective work, the family room door (7/14/2010 CWO item #1), the parties settled that item. Respondent agreed to perform the corrective work. If Respondent does not do so, Complainants may contact the ROC and request a compliance hearing. 5. This matter should be closed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Sun Valley Remodeling, Inc. be closed.

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, February 23, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Emphasis in original. [2] Exhibit 1. [3] The lower this number, the more heat is being blocked. [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).

-----------------------

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