ALJDEC decisions subject to certification as final

2011A-3377-ROC · Registrar of Contractors · 2012-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 31, 2012, at 8:00 a.m. and July 9, 2012, at 1:00 p.m. APPEARANCES: On May 31, 2012, and July 9, 2012, Dividend Homes and Construction LLC (hereinafter “Complainant”) appeared through its authorized representative, Gary Wayne Segal. On May 31, 2012, Sierra Vista Glass Inc (hereinafter “Sierra Vista”) appeared through its authorized representative, Richard Main. Sierra Vista failed to appear on July 9, 2012. 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. Sierra Vista is the holder of License No. K-65.169930-D issued by the Registrar of Contractors. 2. Sierra Vista installed store fronts, including frames, doors and glass, on a commercial building located at 1993 S. Frontage Road, Sierra Vista, Arizona for Complainant. 3. Complainant was dissatisfied with Sierra Vista’s workmanship on the commercial project and Complainant filed a formal Complaint against Sierra Vista with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on July 25, 2011, directing Sierra Vista to perform designated corrective work on the commercial building. 5. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means: 1. Doors to Suites 101, 102, 103, 104, 204, 205 blow open on their own, door closure may not be adjusted, or are the wrong units based on application or door weight: Doors to suites 102 and 104 do not operate correctly and need to be adjusted, all other doors function properly. 2. Doors to Suites 101, 102, 103, 104, 204, 205 installed incorrectly, can see light between double doors, weather felt strip does not meet allowing air to pass through: Doors to suites 102 and 104 weather strip needs to be adjusted to stop air flow, all other doors weather strip is installed properly. 3. Suite 102, door looks like it was installed out of square, it rubs on side door screw and has scratched frame: Needs to be properly corrected. 4. Provide shop drawings and product drawings: Provide shop drawings and product information.

6. On May 31, 2012, the parties stipulated to set the matter for further hearing to allow Sierra Vista sufficient time to fully comply with the terms of the Corrective Work Order. 7. Inspector Nieves testified that he performed an onsite inspection on July 25, 2011, and issued the Corrective Work Order on the same date. Inspector Nieves stated that he held a prehearing jobsite inspection approximately one week before May 31, 2012, and found that the doors on suite 102 and suite 104 did not operate correctly and that the door in suite 102 was still out of square. Inspector Nieves testified that Sierra Vista acknowledged that it had failed to provide shop drawings and product drawings to Complainant as required by the Corrective Work Order.[1] 8. Inspector Nieves testified that Sierra Vista’s construction work failed to comply with applicable workmanship standards.[2] 9. Gary Wayne Segal (hereinafter “Mr. Segal”) testified that he is the managing member of Complainant. Mr. Segal testified that Complainant contracted with Sierra Vista for the installation of store fronts, including frames, doors and glass, on a commercial project in Sierra Vista, Arizona. Mr. Segal stated that he noticed numerous installation problems with Sierra Vista’s construction work.[3] 10. Mr. Segal testified that there is a multiple door and window façade on the commercial building at issue and that he noticed numerous doors that rubbed, numerous doors that showed light around them, and one door that was out of square. Mr. Segal stated that after the Corrective Work Order was issued, Sierra Vista visited the construction site at unannounced times even though Complainant had requested notification of Sierra Vista’s visits to the jobsite. Mr. Segal stated that no shop drawings have been provided to Complainant as required by the Corrective Work Order.[4] 11. Mr. Segal testified that Sierra Vista had performed some corrective action at the jobsite but that several doors still blow open in the wind and require proper adjustment.[5] 12. Administrative notice is taken of Sierra Vista’s prior license record as reflected on the Registrar of Contractors’ public website on July 24, 2012. Such prior license record reflects that License No. K-65.169930-D of Sierra Vista is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The storefront doors installed by Sierra Vista were not installed in accordance with applicable workmanship standards. This Tribunal concludes that Sierra Vista violated the charged provision of A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. Sierra Vista failed to correct the adjustment of the storefront doors and failed to deliver shop and product drawings to Complainant. This Tribunal concludes that Sierra Vista violated the charged provision of A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action to comply with the Registrar of Contractors’ written directive). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. K-65.169930-D of Sierra Vista shall be suspended until the Registrar of Contractors receives and accepts written proof that Sierra Vista has fully complied with the terms of the written Corrective Work Order. It is further recommended that if on or before the effective date of this Order, Sierra Vista fully accomplishes the above described corrective action, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended that, in addition to the above-provided penalties, if any, Sierra Vista pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Sierra Vista to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Sierra Vista’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Sierra Vista, 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 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, July 24, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 7/9/12 Hearing Record (hereinafter “7/9/12 H.R.”) at 6:58:9:40. [2] 7/9/12 H.R. at 9:50-10:08. [3] 7/9/12 H.R. at 11:00-11:40. [4] 7/9/12 H.R. at 11:45-13:45. [5] 7/9/12 H.R. at 13:48-14:01.

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