ALJDEC decisions subject to certification as final

2010A-308477177-ROC · Registrar of Contractors · 2011-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, September 20, and September 21, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Laura Kirkwood. The Respondent appeared through its attorney, Guy W. Bluff. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class B-3 (No. 260542) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a written construction agreement for the Respondent to remove and replace existing doors and windows in the Complainants’ residence for the total sum of $66,879.27. 3. During the course of construction, the Complainants became increasingly dissatisfied with the Respondent’s workmanship and with the Respondent’s refusal to correct its construction work to their satisfaction despite their demands that the Respondent do so. 4. When the Respondent failed to comply with the Complainants’ demands, the Complainants terminated the Respondent from the jobsite and filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection on December 7, 2010. 6. On December 9, 2010, the assigned Agency Inspector issued a lengthy written Corrective Work Order addressing each of the 137 items set forth in the Complainants’ complaint and directing the Respondent to perform designated corrective work on the designated items set forth in the written complaint. 7. The Complainants then filed an addendum to their complaint and on January 12, 2011, the assigned Agency Inspector conducted an additional onsite inspection at the Complainants’ residence. 8. On January 12, 2011, the assigned Agency Inspector issued an Addendum to the December 9, 2010, Corrective Work Order. The January 12, 2011, Addendum to the Corrective Work Order provides, in pertinent part, as follows: Contractor to correct the following by appropriate means: 5. Install remaining key locks on 4 French doors: Locks need to be installed. 6. Major air leaks: Needs to be properly corrected.

No action is required on the following: 1. Windows and French doors with interior wood surfaces were not finished immediately after installation, per manufacture specifications: Addressed on the original corrective work order. 2. All windows and doors not installed according to manufacture specifications: Addressed on the original corrective work order. 3. Enerform product was used around all exterior windows, as well as entry door, Enerform is not waterproof: I could not determine if Enerform is or is not completely waterproof. 4. Exterior trim not installed to manufactures [sic] specifications: I could not determine if trim did not meet manufactures [sic] specifications. 7. Damage to stucco walls hidden under aluminum frames: I could not determine if the stucco was damaged.

9. On January 24, 2011, the Complainants filed a written request for an administrative hearing. 10. On February 14, 2011, the Registrar of Contractors issued a Citation and Complaint charging the Respondent with possible violations of A.R.S. § 32-1154 (A) (1), A.R.S. § 32-1154 (A) (2), A.R.S. § 32-1154 (A) (15), A.R.S. § 32-1154 (A) (23), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32- 1124 (B), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158, and A.R.S. § 32-1154 (A) (3), namely A.A.C., rule R4-9-108. 11. Credible testimony and evidence established that the Respondent began corrective work on the Complainants’ residence in an attempt to comply with the terms of the written Corrective Work Order. 12. Credible testimony and evidence established that the Complainants disagreed with the Respondent’s chosen method of performing the directed corrective action and stopped the Respondent from completing its corrective work on their residence. 13. Credible testimony and evidence established that the Respondent then made repeated subsequent attempts to gain access to the Complainants’ residence in order to complete the corrective work the Respondent had started in an effort to comply with the terms of the written Corrective Work Order and the Addendum to the written Corrective Work Order. 14. Credible testimony and evidence established that the Complainants repeatedly denied the Respondent access to their residence based upon their disagreement with the Respondent’s chosen method of corrective action. 15. Credible testimony and evidence established that the Registrar of Contractors does not specify methods of performing directed corrective action. Instead, the decision as to the appropriate method of corrective action necessary to comply with the terms of a Corrective Work Order is left up to the licensed contractor, which makes such decision at its peril. 16. Credible testimony and evidence established that the Complainants’ actions, in denying the Respondent access to their residence and preventing the Respondent from completing the corrective action that had been started on the Complainants’ residence, were unreasonable. 17. There was no dispute that the Respondent’s corrective work on the Complainants’ residence has not been completed and that the Corrective Work Order and the Addendum to the Corrective Work Order have not been fully complied with. However, in view of the unreasonable denial of access no violation of the charged provisions of A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action) is found to be supportable. 18. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform the construction project at issue. 19. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes in its construction work at the Complainants’ residence. 20. There was no dispute that the Respondent had failed to comply with the applicable provisions of A.R.S. § 32-1124 (B) (display of license) while performing work at the Complainants’ residence. 21. Credible testimony and evidence established that the Respondent is now in full compliance with the provisions of A.R.S. § 32-1124 (B). 22. There was no dispute that the Respondent had failed to properly comply with the applicable provisions of A.R.S. § 32-1154 (A) (15) (acting as a contractor in a name other than as set forth upon the license). 23. Credible testimony and evidence established that the Respondent is now in full compliance with the applicable provisions of A.R.S. § 32-1154 (A) (15). 24. There was no dispute that the written contract prepared by the Respondent failed to fully comply with the applicable provisions of A.R.S. § 32-1158 (minimum elements of a contract). 25. Credible testimony and evidence established that the Respondent has modified its construction contracts so as to be in full compliance with the applicable provisions of A.R.S. § 32-1158 (minimum elements of a contract). 26. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity after a hearing to correct any determined deficiencies in its construction work. 27. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the installation of the new doors and windows in their residence are understandable, construction work, such as that at issue herein, is not a perfect science, and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project in order to bring the final work product up to appropriate workmanship and industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete the corrective action required by the Corrective Work Order and the Addendum to the Corrective Work Order. 28. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. The Complainants failed to sustain their burden of proof to establish that Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment), and A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes). 5. Credible testimony and evidence supported findings which established that the Respondent was denied reasonable access to complete its corrective work on the Complainants’ residence precluding a conclusion that the Respondent failed to take appropriate corrective action in violation of the charged provisions of A.R.S. § 32-1154 (A) (23). 6. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A)(13), namely, A.R.S. § 32-1124 (B) (display of license), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158 (minimum elements of a contract), A.R.S. § 32-1154 (A) (15) (acting in the capacity of a contractor in a name other than as set forth upon the license), and (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has either fully complied with the terms of the Corrective Work Order and the Addendum to the Corrective Work Order issued in this matter or written proof acceptable to the Registrar that the Respondent has been denied reasonable access to the Complainants’ residence to perform the corrective action necessary to comply with the terms of the Corrective Work Order and the Addendum to the Corrective Work Order issued in this matter.. It is further recommended that if the Respondent properly accomplishes the above described corrective action or is denied reasonable access to the Complainants’ residence to perform the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. In the event of certification of this 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 the certification. Done this day, October 13, 2011.

/s/ M. Douglas 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