ALJDEC decisions subject to certification as final

2010A-3213670-ROC · Registrar of Contractors · 2011-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by Lawrence Zak, Respondent’s corporate President and Qualifying Party, and Brian Olson, Respondent’s Vice President.

WITNESSES: Rick Oelke, ROC Inspector Karen Barney Lawrence Zak

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship and failure to comply with an order issued by the Registrar of Contractors. The claims against Respondent concern replacement of windows and a sliding glass door by Respondent at Complainant’s home. Respondent denies the allegations. This matter was previously closed as resolved by the parties with an agreement that they would work together to have corrective work done. The case was re-opened by the Registrar of Contractors when Complainant alleged that Respondent had not kept the agreement. The Order Reopening Complaint and Setting Hearing, issued in February 2011, states that Complainant is to bear the burden of showing a violation of the statutes based on the original complaint and the Citation and Complaint that was issued on October 29, 2009. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with photographs submitted by Complainant and marked as Exhibits A through M, and Respondent’s Exhibit 1. 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 B-3.214373-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general remodeling and repair of residential properties. Lawrence Zak is the company’s Qualifying Party. 2. Complainant filed an ROC complaint against Respondent in July 2009 alleging problems with window replacements and replacement of a sliding glass door by Respondent. After ROC Inspector Rick Oelke inspected the items in August 2009, he issued a Corrective Work Order (“CWO”) noting several corrections that were needed. 3. At hearing, Respondent introduced into evidence Exhibit 1, which is a copy of the CWO with the initials “KB” or “KCB” next to the items for which correction was ordered. Lawrence Zak, Respondent’s President and Qualifying Party, testified that Complainant initialed the items signifying that the corrections were completed and acceptable and that she then paid the remainder of the amount due to Respondent under the contract. His testimony is supported by documentation in the complaint file and Exhibit 1. 4. When asked to verify her initials on Exhibit 1, Complainant first stated that some of the initials were hers and others were not.[1] A few minutes later, she changed her testimony and testified that none of the initials were hers.[2] The Administrative Law Judge does not find her testimony to be credible. Zak’s testimony that the initials are Complainant’s is more credible. 5. Exhibit 1 shows that Complainant accepted the corrective work done by Respondent. 6. Toward the end of the hearing, the parties were negotiating, on the record, for some work Complainant wanted done on a window that Respondent was willing to perform as part of a settlement. During that discussion, Complainant directed negative comments toward Zak. She was admonished to direct all of her comments to the Administrative Law Judge.[3] She then said the following: Complainant: . . . When this work is done, can he [referring to Zak] be restricted from entering my house or being near my house. . . . I cannot deal with this man. He likes to hear himself talk. The last time he was at my house he stuck his tongue out at me. . . . I don’t want me going to prison for shooting this man.

Administrative Law Judge: Why would you say that?

Complainant: Because he’s obnoxious and he does it deliberately.[4]

Complainant did not apologize for the comment. The Administrative Law Judge informed her that she was in jeopardy of losing the case because of her statement. When asked again by the Administrative Law Judge why she would say such a thing, Complainant repeated that she thought Zak was obnoxious. She did not apologize for the statement. The Administrative Law Judge then ended the hearing quickly. 7. The Administrative Law Judge finds Complainant’s conduct at the hearing to be unacceptable and a waiver of her right to pursue her complaint any further. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] 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.[7] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship), and (A)(23) (requires compliance with a CWO).[8] 3. The evidence shows that Complainant accepted the corrections performed by Respondent after the CWO was issued. 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 Wholesale Window and Door, Inc. 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, June 23, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 6/03/11 Hearing Record (hereinafter “H.R.”) at 1:43:10. [2] 6/03/11 H.R. at 1:44:36 – 1:45:03. [3] 6/03/11 H.R. at 2:04:46. Zak too was admonished because he had made negative comments toward Complainant. [4] 6/03/11 H.R. at 2:04:50 – 2:05:25. [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [8] The Citation and Complaint also cites provisions relating to departure from plans, specifications, or building codes, relating to misleading advertising, and relating to minimum elements of a contract. The parties did not present evidence relating to those citations.

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