ALJDEC decisions subject to certification as final

2010A-308476116-ROC · Registrar of Contractors · 2011-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2011

APPEARANCES: Complainant Alvin Zanter appeared on his own behalf, accompanied by his wife Jean Zanter; Respondent was represented by Victoria Maggard.

WITNESSES: Jim Hennessy, ROC Inspector Alvin Zanter Victoria Maggard Marvin Janes, employee of Respondent James Ryan, electrical consultant for Respondent

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship and failure to comply with a Corrective Work Order issued by the Registrar of Contractors. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. 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 KB-2.180070-D, a dual residential and small commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general small commercial construction. Jimmie Wayne Maggard is the Qualifying Party. 2. In 2010, Complainant and his wife bought a house. It was a pre- owned house and Complainant received a home inspection report that stated all the work needed to repair various parts of the house. 3. On June 11, 2010, Complainant hired Respondent to perform repairs in the house. The agreement lists the work to be performed by Respondent as follows: • Remove paneling on the north and west walls of the family room, hang one piece of drywall • Block in the pocket door leading from the family room to the kitchen area so it cannot be moved. • Remove all tile and carpeting from the house except the two bedrooms and bathrooms. Install laminated wood flooring with insulating pad in all areas where carpeting and tile was removed • Remove ceiling fans in 2 bedrooms, run new electrical wire for 2 fans/witches and reinstall existing fans • Install one 16x7’ garage door and opener on the garage. Door opening will have to be modified and some siding will be removed. The door will be installed on June 15th. • Install one new exterior door on front of house an install 4 new sets of locks, keyed the same on other exterior doors. • The contractor will clean-up and remove any debris resulting from construction and clean-up the construction site at the end of each working day. • Any additional work performed not outlined in this agreement will result in additional charges • The removal of the wallpaper in the bedroom will be part of the agreement between the owner and the painter.

At hearing, Complainant took the position that Respondent had contracted to perform the work listed in the home inspection report. The record does contain a proposal from Respondent to Complainant that was made in April 2010 and references the home inspection report. But it does not show that the proposal was accepted.[1] However, the June 11, 2010 contract signed by the parties contains no mention of the home inspection report. Therefore, the only work Respondent had a contractual duty to perform was the work listed in the signed June 11, 2010 contract as stated above, not the home inspection report. 4. Respondent performed the work. Complainant filed his ROC complaint on September 18, 2010, complaining about several areas of the work. 5. ROC Inspector Jim Hennessy inspected the complaint items and issued a Corrective Work Order (“CWO”) dated October 21, 2010. The CWO addressed the following items taken from the complaint: 1. Pay us for work not done. 2. No longer have original estimate 3. All documents relating to this project were removed from our house and contractor had a key. 4. Garage door installed by the contractor not insulated. 5. Contractor was to remove all construction trash but did not; had to pay $250 to remove. 6. Double sliding glass door on exterior of patio not removed and hauled away 7. Electrical wire for garage door opener running from electrical outlet through wall the contractor agreed to correct.

In addition to the numbered items, there were items added by Complainant at the jobsite. Respondent agreed to add those items to the complaint. Those items were either a duplicate of one of the first seven items or were found to be outside the scope of the signed contract. The CWO listed the additional items in a separate section. The CWO only found merit to the seventh complaint and, therefore, only ordered Respondent to correct the last numbered item, concerning the electrical setup for the garage door opener. 6. At hearing, Complainant challenged the CWO’s failure to order correction on the first six items. In turn, Respondent challenged the seventh item. Each item will be addressed herein. 7. Several items in Complainant’s complaint were outside the scope of the contract: Items 1 (all work not done), 4 (insulated garage door), 6 (removal of sliding glass door), and 7 (electrical setup for garage door). The record shows that Respondent performed all items on the signed contract dated June 11, 2010. That contract did not include an insulated garage door, removal of the sliding glass door, or changes to the electrical setup of the garage door opener.[2] The evidence supports the conclusion of the CWO that no action is required by Respondent for items 1, 4, and 6. Item 7 is addressed further below. 8. Items 2 and 3 in the complaint raise issues about missing documentation. The record shows that Complainant’s documentation was lost or stolen, but there is not enough information to tell which of by whom. Respondent brought a copy of the June 11, 2010 contract to the jobsite inspection and Complainant received that copy at that time. The evidence supports the conclusion of the CWO that Respondent need not take any action on items 2 and 3. 9. With regard to item 5, removal of trash, the evidence shows Respondent had a trash barrel from Parks & Sons at the jobsite during the project. Also, there is no documentation showing that Complainant paid $250 for trash removal, nor to whom he paid it, nor when he paid it. Marvin Janes, who was working for Respondent on this project as a “helper,” testified that Respondent performed clean up on the job. The evidence supports the CWO conclusion that complaint item 5 could not be verified. 10. Finally, with regard to item 7, even though that item was not part of the contract, the CWO ordered Respondent to correct the situation because the Inspector concluded that Respondent should have known there was a building code violation with respect to the electrical supply to the garage door. The evidence does not support the CWO on item 7. 11. Photographs submitted in the record show the setup of the garage door opener outlet. There is an outlet installed in the garage ceiling in the usual place one would expect for a garage door opener to be plugged in. However, instead of tying in directly to the electrical wiring of the house, the garage ceiling outlet runs through the ceiling and several walls to a laundry/utility room and then plugs into another outlet in the wall in that room. It appears that the idea was to make it easier to unplug the garage door opener. However, the setup is a violation of building code. 12. The question to determine in this case is whether Respondent should have known about that condition and, if so, was required to fix it. Both the evidence and common sense say “No.” The evidence does not show that Respondent should have been aware of the problem just by installing a new garage door and opener. To anyone standing in the garage, there is no indication of anything unusual about the outlet in the ceiling. It appears to be a typical outlet that you see in any garage with an electric opener. This tribunal finds that Respondent was not aware of the issue and did not have any reason to be. 13. The evidence does not show poor workmanship or failure to comply with a properly issued CWO. 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 not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23) and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. Subsection (A)(23) requires contractors to comply with CWOs. 3. The evidence does not show that Respondent failed to meet minimum workmanship standards. Furthermore, Respondent’s failure to comply with item 7 of the CWO is not a violation because Respondent had no responsibility for the underlying complaint upon which item 7 was based. 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 Victoria Ann Maggard and Jimmie Wayne Maggard dba Maggard’s Construction 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 27, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Further corroboration that the April 2010 proposal was not accepted is found in the payment information provided by Complainant. It shows that Complainant paid Respondent an amount consistent with the June 2010 proposal. [2] Nor did it include the items added at the jobsite inspection and listed at the end of the CWO. [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).

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