ALJDEC decisions subject to certification as final

2010A-308476643-ROC · Registrar of Contractors · 2011-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2011 APPEARANCES: Jason Weinberg appeared personally. Wellsons Construction & Glass, L.L.C. was represented by its authorized representative, Ron Vucson. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Wellsons Construction & Glass, L.L.C. (“Respondent”) is the holder of License No. 268229, a Class C-65 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Jason Weinberg (“Complainant”) entered into an agreement with Respondent to replace two cracked windows at Complainant’s residence located at 2460 South Birch Street, Gilbert, Arizona. The contract price for the project was $498.70. 3. On October 21, 2010, Complainant filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on the project. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Complainant’s existing windows are low e tinted Azurelite glass products that are specifically approved by Complainant’s homeowners association (“HOA”). 7. At the time of their agreement, Respondent stated that it could match the existing window glass. 8. After the new windows were repaired, it became obvious that the replacement glass did not match the color of the existing glass. 9. Respondent used replacement glass called Cardinal 240. 10. Respondent explained that the original windows were manufactured by Jordon Windows. Johnson Windows has since gone out of business. Therefore, Respondent claimed that the original product could not be located and that the Cardinal 240 was the closest matching tint color product. 11. Complainant’s HOA has advised him that the glass windows installed by Respondent are not in compliance with the HOA’s Covenants, Conditions, and Restrictions. 12. Complainant presented credible evidence establishing that the Azurelite product is available from Performance Windows & Door, L.L.C. and Gilbert Glass Corp., albeit at a higher price than the parties’ contract price. 13. In response to the filed Complaint, the Registrar’s assigned inspector, Randy Cason, performed a jobsite inspection to view the Complaint items. After the jobsite inspection, Inspector Cason issued a Corrective Work Order dated November 17, 2010, that addressed each of the Complaint items. 14. The Corrective Work Order required Respondent to timely correct the window tint of the repaired windows and the inserts “(grid/muttons)” on the front window to match the other windows. 15. The Corrective Work Order required Respondent to timely correct the ADT alarm sensor on the front window that was replaced. The sensor came off when Respondent worked on the window. 16. The Corrective Work Order required Respondent to timely correct the issue of Respondent’s use of silicon rather than the rubber seal used in the other back windows. 17. The evidence of record established that Respondent did not comply with the Corrective Work Order. 18. The correct glass product is available on the market, albeit from at least one of Respondent’s competitors. 19. The ADT alarm sensor will need to be fixed when the correct replacement glass is installed. 20. The use of the silicon in place of the rubber seal on the back window should be a moot issue once the back window is properly repaired. 21. Respondent received payment totaling $498.70 for repairing the two windows. A monetary dispute arose between the parties. Complainant filed a claim with his credit card company. Credible evidence established that the credit card company released the disputed funds to Respondent although Respondent denies that occurred. 22. The evidence of record supports Complainant’s request for restitution from Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 4. Pursuant to A.R.S. § 32-1156.01, the Administrative Law Judge concludes that Complainant established an entitlement to restitution in the amount of $498.70 from Respondent. RECOMMENDED ORDER Respondent’s License No. 268229 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides the Registrar with written proof, and the Registrar approves such proof, that Respondent has paid to have the ADT alarm sensor properly repaired and Respondent has paid restitution to Complainant in the amount of $498.70. If Respondent provides written proof to the Registrar that Respondent has paid to have the ADT alarm sensor properly repaired and Respondent has paid restitution to Complainant in the amount of $498.70 on or before the effective date of the Order entered in Case No. 2010-[number redacted], and the Registrar approves proof of such compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 268229 shall be placed on probation for a period of 30 days commencing on the effective date of the Order entered in Case No. 2010- [number redacted] or the date on which the Registrar approves proof of Respondent’s compliance with this Order, whichever is later. In addition to the above-provided disciplinary penalties, if any, Respondent shall pay the sum of $250.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2010- [number redacted] shall result in the automatic revocation of Respondent’s contracting license, effective on such 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 tendered. 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/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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