ALJDEC decisions subject to certification as final

2010A-308473908-ROC · Registrar of Contractors · 2011-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2011

APPEARANCES: Complainant was represented by attorney Lee Blake and Managing Member Greg Donnally; Respondent was represented by attorney Clark Gee, accompanied by General Manager and Qualifying Party Robert Tomaselli.

WITNESSES: Jeff Fleetham, ROC Inspector Greg Donnally Doug Ward, Consultant to Complainant Robert Tomaselli

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship. The claim against Respondent concerns “plastic” panels installed by Respondent at Complainant’s restaurant. Respondent denies the allegations. The issues cited in the Citation and Complaint issued by the Registrar of Contractors for this case concern workmanship and compliance with a Corrective Work Order. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits 1 through and Respondent’s Exhibits A, B, and C. 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 violation. FINDINGS OF FACT 1. Respondent is the holder of license L-65.118913-C issued by the Registrar of Contractors (“ROC”). It is a specialty commercial contracting license that authorizes Respondent to perform glazing work by installing and replacing glass products. The Qualifying Party on the license is Robert Tomaselli. 2. In August 2009, Complainant was building a restaurant in Scottsdale, Arizona. Complainant was acting as an owner/builder; there was no general contractor for the job. Complainant hired Respondent to perform work at the restaurant, including installation of a divider/fence that divides outdoor seating from the sidewalk. 3. Complainant wanted the divider/fence to be a “plastic” resin material embedded with long grass. Complainant chose a product made by Lumicor (architectural resin panels).[1] 4. Respondent suggested that the panels be installed with posts and clips to allow for more flexibility of the panels as installed. Instead, Complainant insisted that the panels be installed in a base “shoe” with a cap rail. This was not a recommended installation from the manufacturer.[2] 5. Respondent installed the panels as directed by Complainant. In June 2010, Complainant filed a complaint with the ROC complaining that the panels had cracked within a short time after installation and that the embedded grass had faded to brown. 6. ROC Inspector Jeff Fleetham inspected the work on July 13, 2010. He issued a Corrective Work Order (“CWO”) on July 20, 2010, that ordered Respondent to correct the faded color of the panels but he could not determine the cause of the cracks in the panels and so did not order Respondent to correct on that basis. The basis for the order to correct the color fade issue was that Inspector Fleetham found that the Lumicor website product specifications stated that UV protection would keep “embedded décor” from fading.[3] Complainant had purchased UV protection for the panels. Inspector Fleetham testified at the hearing in explanation of the CWO. 7. The parties presented evidence and testimony as to each of the issues. The evidence concerning the cracking is speculative as to the cause of the cracks. Complainant has not shown that Respondent caused the cracks by poor installation. 8. With regard to the issue of the embedded grass, Complainant has not shown that Respondent violated workmanship standards. There is no evidence that Respondent misrepresented the product. Information about it is readily available on the Internet.[4] That information shows that the panels are intended for indoor use although they have been used for outdoor applications by some customers. It warns about direct sunlight and high temperatures. 9. Complainant chose to act as an owner/builder and forego hiring a general contractor, thus taking on more responsibility for the project. Complainant chose the product and its application. Respondent installed the panels in a reasonable manner,[5] after warning Complainant about the way Complainant wanted it installed. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] 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.[8] Complainant has not met that burden. 2. The Citation and Complaint alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibiting poor workmanship) and (A)(23)(requiring compliance with a Corrective Work Order). 3. The evidence does not show that Respondent violated the cited provisions. Complainant made choices that it must bear responsibility for. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent West Coast Glass & Mirror Co., Inc. dba Mirror Works 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 day, May 26, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit A. [2] Exhibit C. [3] Exhibit 2. [4] Exhibits 9 and 10. [5] Complainant did not present any other viable method of installation of the panels given the method selected by Complainant, nor did Complainant show that the method used by Respondent was not within workmanship standards. [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] 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