ALJDEC decisions subject to certification as final

2010A-4299067-ROC · Registrar of Contractors · 2010-10-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 14, 2010

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by company President Greg Bailey.

WITNESSES: ROC Inspector Mark Alyea Gordon Wark Margaret Wark Greg Bailey

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action alleging poor workmanship by Respondent regarding installation of a glass door. Respondent denies the allegation. 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 United Window and Door Corp is the holder of a class K- specialty dual contracting license (No. 177588) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to install glass and glass products (such as windows, doors, mirrors, skylights) for both commercial and residential projects. The license is currently suspended for lack of a Qualifying Party. 2. Complainants bring this complaint about the installation of a glass specialized arcadia multiple-panel door in their home as built by general contractor J C and Sons General Contractor (“JC”).[1] Respondent was the subcontractor who installed the door in September 2007. The door, as installed, allows water intrusion. There is no overhang above the outside of the door to shed water away from the door. Thus, water runs down from the roof to the door to the door track and enters the home. Inside the home there is wooden flooring right up to the door. That flooring has been damaged by the water intrusion. 3. ROC Inspector Mark Alyea performed a jobsite inspection of the floor in December 2009.[2] He found that the door threshold was practically level with the floor and provided no protection for water intrusion. At hearing, there was testimony that a higher threshold could be installed that would provide some protection. The Inspector issued a Corrective Work Order (CWO) to Respondent, ordering Respondent to correct the problem. 4. Respondent, through Greg Bailey, admits that the door that is installed is not the correct application for that door and that correction is needed. However, Respondent asserts that the general contractor is the responsible party because it made the decision to install that type of door. Respondent was hired by JC and never interacted with Complainants during construction. The uncontested testimony is that JC approved the lower threshold and did not order the higher threshold and that the door was installed during the framing stage of construction so that Respondent did not have reason to know about the lack of an overhang from which to anticipate water intrusion. 5. This tribunal finds Greg Bailey’s testimony to be reasonable and credible. 6. Mr. Wark testified that he noticed the water intrusion problem during construction and informed JC about it. Based on this interaction, he believed that JC was taking care of it.

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, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainants have not met that burden. 2. The Citation and Complaint alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), failure to comply with a CWO, and (A)(3) by way of ROC Rule R4-9-108.[6] Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. 3. The evidence does not show by a preponderance of the evidence that Respondent violated the cited provisions. Complainant’s evidence was based on speculation and unreliable hearsay from the general contractor. It does not support a finding that Respondent violated the statutes.[7] 4. No violation of the cited statutes has been shown. 5. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-4299067 (formerly 10-0429) against Respondent United Window and Door Corp. 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, October 4, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] JC’s license (113279) was revoked in September 2010 for failure to pay a civil penalty. [2] Neither the general contractor nor Respondent was present. Respondent’s witness testified without contradiction that he could not be present at the time of the inspection through no fault of his. [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). [6] Other violations were cited but were not pursued by Complainant at the hearing. The ROC has issued warning letters to Respondent regarding those violations. [7] The general contractor was not a party to this complaint.

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