ALJDEC decisions subject to certification as final

2010A-851555-ROC · Registrar of Contractors · 2010-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 24, 2010 at 8:15 a.m. APPEARANCES: Complainant Terrance L. Wiesner appeared on his own behalf; Respondent Southwestern Shade L.L.C. appeared through Anthony C. Cholewa, its qualifying party and managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On January 6, 2000, the Registrar of Contractors (“the Registrar”) issued License No. ROC151607, Class KB-1 for dual building to Homes by Wiesner Inc., a corporation. Complainant Terrance L. Wiesner is the qualifying party, officer, and only natural person listed on that license. On October 28, 2003, the Registrar issued License No. ROC189981, Class C-3 for residential awning and canopies to Respondent Southwestern Shade L.L.C., a limited liability company. On December 4, 2009, the Registrar received a complaint from Complainant against Respondent’s license concerning Respondent’s installation of sunscreens at a house that Complainant was constructing at 2230 Green Drive in Lake Havasu City, Arizona 86406. The Registrar referred the complaint to Respondent for its immediate attention. The Registrar’s Inspector, Cliff Corlett, performed a jobsite inspection on December 11, 2009. Respondent did not attend the jobsite inspection, but contacted the inspector that same day by phone. On December 15, 2009, Inspector Corlett issued a Corrective Work Order (“CWO”) to Respondent, directing it within fifteen days to correct by appropriate means certain aesthetic deficiencies in the two largest sunscreens. Inspector Corlett noted on the CWO that Respondent had advised Inspector Corlett by phone that Complainant had failed to install wind sensors for the sunscreens. Inspector Corlett noted further that Respondent had not provided any documentation to him from the manufacturer that would limit Respondent’s responsibility for the poor appearance of the sunscreens in the absence of wind sensors. In addition, Inspector Corlett indicated that Respondent had not provided any evidence to him that Respondent had supplied the manufacturer’s documentation to Complainant. On January 29, 2010, the Registrar received Complainant’s request for hearing. On March 5, 2010, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(2), (3) (namely A.A.C. R4-9-108), (23), and (13) (namely A.R.S. § 32-1124(B)). Respondent timely answered the complaint, denying any statutory violations and making the same affirmative allegations that Inspector Corlett noted in the CWO. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. A videoconference hearing was held on June 24, 2010. Inspector Corlett testified. Complainant testified and submitted twenty-three exhibits. Respondent presented the testimony of Anthony C. Cholewa, its managing member and qualifying party, and submitted eighteen exhibits. Additional Evidence On November 27, 2006, Respondent made an initial sales call and submitted a proposal to Complainant to install sunscreens at a house that Complainant or Homes by Wiesner was constructing at 2230 Green Drive. The proposal showed four sunscreens: (1) A large 26’6” x 23’ “split” screen on the west patio; (2) A large 12’ x 23’ screen on the northwest patio; (3) A smaller 192” x 100” screen on the second patio; and (4) A smaller 16’ x 7’8” screen on the kitchen window. Over the next several months, Respondent provided literature from the manufacturer of the sunscreens, Tucson Rolling Shutters, to Complainant. Tucson Rolling Shutters’ literature stated that one of the benefits of its sunscreens was that the weighted bar at the bottom of the screen “allow[ed] the screen to gently flow” when the wind blew. During windy conditions, Tucson Rolling Shutters recommended that the sunscreens be raised. Tucson Rolling Shutters also instructed that wind sensors be installed near the sunscreens. The wind sensors would automatically raise the sunscreens if the sensors detected wind that exceeded a certain speed. In approximately February or March, 2007, Complainant informed Respondent that he wanted Respondent to install the sunscreens at the house on Green Drive. Respondent submitted to Complainant a completed Purchase Agreement and Sales Contract for the four sunscreens. The back of the Purchase Agreement and Sales Contract provided that if the sunscreens were left down in extreme wind, resulting damage would not be covered by the warranty. Complainant refused to sign the Purchase Agreement and Sales Contract. Complainant made an initial payment and Respondent installed the mechanisms on which the sunscreens would be placed. In August 2008, Respondent installed the sunscreens. Complainant objected to the locations where Respondent proposed to install the wind sensors for the two large sunscreens. Complainant refused to allow Respondent to install the wind sensors for the two large sunscreens at the intended locations. Instead, Complainant instructed Respondent to leave the sensors for Complainant’s electrician to install. The record does not show if, or in what location, the wind sensors were installed. However, as noted above, the record established that failure to install or poor placement of the wind sensors could result in wind causing damage to the sunscreens. Mr. Cholewa testified that the appearance of the sunscreens complied with all applicable workmanship and aesthetic standards after Respondent installed them. Respondent submitted photographs of the sunscreens that had been taken immediately after installation. Inspector Corlett testified that the photographs showed the sunscreens to be smooth and, apparently, installed in a professional and workmanlike manner. However, he testified that Registrar’s inspectors must base their opinions of workmanship on personal inspection, not on photographs. Inspector Corlett testified that when he performed the initial jobsite inspection, he observed the aesthetic deficiencies noted on the CWO, specifically, that the sunscreens did not close tightly to the frame or hang uniformly and that the sunscreens folded when they were retracted. Inspector Corlett testified that the sunscreens still functioned to shade the porches and windows. Mr. Cholewa credibly testified that the aesthetic deficiencies described on Inspector Corlett’s CWO and shown on Complainant’s photographs did not exist when Respondent left the job. The aesthetic deficiencies indicated wind damage. In November 2008, Respondent sent an invoice for the remaining balance of $6,253.18 due for installation of the sunscreens. For the first time, Complainant, on behalf of Homes by Wiesner Inc., complained about the appearance of the sunscreens. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] As indicated in Finding of Fact #6, when Inspector Corlett issued the CWO, he did not have the benefit of either the documentation from Tucson Rolling Shutters that extreme wind could damage the two large fabric sunscreens in the absence of such sensors, which Respondent produced at hearing, or Mr. Cholewa’s credible testimony that he had provided this documentation to Complainant. In light of the hearing record, Respondent has established its affirmative defense that the poor appearance of the two large sunscreens was due to Complainant’s refusal to allow Respondent to install the wind sensors. See Finding of Fact #23. Therefore, Complainant has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(2),[6] (3),[7] or (23)[8] in its installation of the sunscreens. No evidence was submitted to establish that Respondent violated A.R.S. § 32- 1154(A)(13).[9] RECOMMENDED ORDER It is recommended that, on the effective date of the Registrar’s final order, Case No. 2010-8551555 against Respondent Southwestern Shade L.L.C.’s License No. ROC189981, Class C-3 be dismissed. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, July 13, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in any material respect to comply with this chapter.” The underlying provision charged was A.R.S. § 32-1124(B), which requires licensees to place their license number, preceded by the acronym “ROC” “on all advertising, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.”

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