ALJDEC decisions subject to certification as final

2011A-3994-ROC · Registrar of Contractors · 2012-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 10, 2012 APPEARANCES: Carl Ramsey appeared personally and he was represented by his attorney, Robert H. Brooks, Esq., Bruno Brooks & Goldberg, PC. Encore Security, Inc. was represented by its attorney, Edward H. Britt, Esq.. Tthe Britt Law Group, PC. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Encore Security, Inc. (“Respondent”) is the holder of License No. K- 67.184408-D issued by the Registrar of Contractors (“Registrar”). 2. Respondent and Carl Ramsey (“Complainant”) entered into a Prewire/Low Voltage System Installation Agreement dated July 10, 2007, for the installation of a “Smart Home” system and a security system by Respondent at Complainant’s residence. 3. Complainant moved into his residence in November of 2008.[1] 4. In November 2008, Complainant informed Respondent of approximately ten items needing repairs. Respondent then performed repairs to those items. However, those repairs were not “gratuitous repairs”[2] as claimed by Respondent because Respondent was responsible for performing remedial repairs to its deficient workmanship for two years. 5. On December 3, 2009, Complainant filed his first written Complaint with the Registrar alleging deficiencies in Respondent’s workmanship as follows: 1) Garage keypad never has worked – replace it. 2) Get smart home system working – just says communication error – see monitors in house. 3) Get front gate camera replaced with a quality camera & mounted straight. 4) Get motion sensor so it lights when someone comes to front door. 5) Replace non[-]working water tank sensors & get [programmed] in. 6) Get TV remote so it works so volume & other items work [through] cabinet doors. 7) Tie stone house security system in w/main house. 8) Credit me for not having a working system after almost 2 yrs – I paid $27,500. 9) Credit me for not completing solar power monitoring. 10) See copy of e-mails (A & B) attached indicating things not completed & still working – I have 25 – 30 more similar emails – note dates – I have more recent ones w/ same items or new items noted.

6. The Registrar designated Complainant’s Complaint as Case No. F10- 0072. 7. On January 4, 2010, the Registrar’s then-assigned inspector Mark Schweiger issued a Corrective Work Order based upon his inspection of the Complaint items.[3] The written directive required Respondent to timely correct Complaint items numbered 1 through 6. No action was required of Respondent as to Complaint items numbered 7 through 10. 8. Respondent performed remedial work to Complaint items 1 through 6 as required by the Corrective Work Order. 9. On February 8, 2010, the Registrar dismissed Complainant’s first Complaint in Case No. F10-0072 because Complainant failed to respond to the Registrar’s communication about the status of the Complaint. 10. On July 13, 2011, Complainant filed a second Complaint against Respondent with the Registrar, alleging Complaint items as follows: 1) Get system working[.] Some items have been replaced, but do not have them working w/ computer programs to verify that they actually work. System pad at front door says “trouble communicating[.]” 2) Replace other (2) water sensors & verify that all 3 work & have proper conduit to them. 3) Get (programs) systems to work w/ all touch monitors, incld. the “weather hawk[;]” the 3 rainwater tank sensors; the security system; the clerestory automatic window opening feature; control of radiant floor and thermostats, as well as “picture show”; scene setting lighting controls and all other smart home features. 4) Get back deck speakers working, as well as all other w/ smart home system. 5) Verify all 2 camera[s] are working in color on TVs & smart system. 6) Credit me for not having a working system for over 3 yrs – the balance that I owe. 7) Get stone house security system working[.] 8) Get garage [keypad] working[.] 9) Get trim piece installed around new touch screen installed in mas[ter] bedroom.

11. The Registrar designated Complainant’s second Complaint as Case No. 2011-3994. 12. Complainant’s Complaint in Case No. 2011-3994 incorrectly lists the parties’ contract as dated January 4, 2010. However, that date is when the Corrective Work Order was issued in Case No. F10-0072. 13. A jobsite inspection in Case No. 2011-3994 was conducted by the second assigned inspector, Bill Redman, on August 5, 2011. However, that inspection was rescheduled because Complainant’s residence was not accessible to the Internet, which was necessary to inspect the Complaint items. 14. A second inspection was conducted by Inspector Redman in September 2011. Inspector Redman worked off the first Corrective Work Order. 15. As a result of the second inspection, Inspector Redman issued a Corrective Work Order dated October 6, 2011, in Case No. 2011-3994, which contained the following findings: 1. The respondent shall determine the reason for the following items/functions not working and repair same in a good and [workmanlike] manner[:] A. Temp control for windows. B. Rain water tank sensors not working. C. Remote control for [TV] not working. D. Speakers on patio not working. 2. Respondent shall install the proper trim around the monitor in the master bedroom.

16. The Registrar issued a Citation and Complaint in Case No. 2011-3994 charging Respondent with violating the provisions of A.R.S. §§ 32- 1154(A)(1), 32-1154(A)(3), namely A.A.C. R4-9-108, and 32-1154(A)(23). 17. The Registrar forwarded Case No. 2011-3994 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. The evidence of record established that Complainant lacked the skills necessary to operate the “Smart Home” system and the security system installed by Respondent. 19. Respondent is determined to have complied with the Registrar’s Corrective Work Order issued by Inspector Schweiger in Case No. F10- 0072. Complainant failed to respond to the Registrar’s inquiries concerning the status of the remedial repairs, resulting in the Registrar closing Case No. F10-0072 on February 8, 2010. Therefore, it is determined that the “Smart Home” and security systems were operating properly after Respondent addressed the Corrective Work Order. It was not until Complainant filed his second Complaint in Case No. 2011-3994 on July 13, 2011, over a year and one-half later, that Complainant reasserted the original Complaint items and some new Complaint items. 20. The Registrar’s third assigned inspector, Cliff Frandsen, performed a pre-hearing jobsite inspection of April 4, 2012.[4] 21. The Corrective Work Order issued in Case No. 2011-3994 required Respondent to address the issue of the temperature controls for windows. Pursuant to the parties’ contract, Respondent was responsible for the installation of window sensors that would communicate with motorized window openers. The motorized window openers were to be installed by Respondent with assistance from Architectural & Environmental Associates, Inc. (“AEA”), who served as the general contractor for the project. Complainant is the president and qualifying party for AEA. The evidence of record is unclear whether this issue arises out of Respondent’s scope of work and/or the work performed by AEA. Inspector Frandsen did not find Respondent responsible for this issue. 22. The second Corrective Work Order also required Respondent to address the issue of the rainwater tank sensors not operating properly. Inspector Frandsen testified that one of the sensors had been removed for investigation. He found that the sensors were not communicating with the “Smart Home” panel. It is determined that Respondent failed to comply with the written directive to perform remedial work to this item in a workmanlike manner. 23. There is credible evidence that the television remote control operates properly. 24. The issue of the patio speakers not working was raised by Complainant for the first time in his second Complaint. Inspector Frandsen testified that the speakers had a one-year warranty. Therefore, Respondent is determined not to be responsible for this Complaint item. 25. The Corrective Work Order required Respondent to install proper trim around the monitor located in Complainant’s master bedroom. The evidence of record established that Respondent did install the trim, but installed it in a temporary fashion in order to access the monitor. There is no credible evidence that the trim is aesthetically unattractive or that the installation is not proper in order to access the monitor. 26. The Corrective Work Order issued in Case No. 2011-3994 did not require Respondent to comply with certain of Complainant’s requests, in relevant part as follows: (a) To “[g]et system working,” including the system pad, other than the specific directives (second Complaint item 1); (b) To “[g]et . . . systems to work” with touch monitors, including the weather hawk, the security system, radiant floor heating and thermostats, the picture show, lighting controls, and other smart home features (second Complaint item 3); (c) To verify that security cameras were working in color and with the smart system (second Complaint item 5); (d) To provide a credit for inconvenience and delay (second Complaint item 6); (e) To get the security system on the stone house working (second Complaint item 7); and (f) To get the garage keypad working (second Complaint item 8). The evidence of record supports Inspector Redman’s decision to not require further action by Respondent for those items. 27. Respondent contends that the “Smart Home” and security systems were damaged by a voltage surge caused by lightning striking Complainant’s residence in August 2008. While Respondent presented credible evidence that there were lightning strikes in the vicinity of Complainant’s residence, there is no conclusive evidence that lightning struck Complainant’s residence causing damage to those systems. The systems operated properly after Respondent complied with the Corrective Work Order in Case No. F10-0072, as evidenced by Complainant’s failure to complain about Respondent’s workmanship for over eighteen months later. 28. The evidence of record fails to support a finding that Respondent abandoned the subject project. 29. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website on April 30, 2012. Such prior license record reflects that there is one open complaint against Respondent’s contracting license. CONCLUSIONS OF LAW 1. A.R.S. § 32-1155 authorizes the Registrar to take disciplinary action against a licensed contractor. Under the facts in this matter, Complainant’s Complaint items set forth in Case No. F10-0072 are beyond the Registrar’s two-year jurisdiction under A.R.S. § 32-1155, with the exception of any allegations of deficient workmanship by Respondent in the performance of remedial work under the January 4, 2010 Corrective Work Order. Respondent is responsible for the performance of such remedial work for two years from the date of that work pursuant to A.R.S. § 32-1155. 2. Pursuant to A.A.C R2-19-119(B), Complainant has the burden of proof in this matter as to the charged violations. Respondent has the burden of proving any defenses it has raised. The standard of proof on all issues is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record does not support a conclusion that Respondent abandoned the subject project in violation of A.R.S. § 32-1154(A)(1), as charged in the Citation and Complaint issued by the Registrar. Complainant failed to sustain his burden of proof on this issue. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to install Complainant’s rainwater tank sensors in a workmanlike manner. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent failed to comply with Registrar’s Corrective Work Order requiring Respondent to repair Complainant’s rainwater tank sensors in a workmanlike manner. 6. Respondent failed to sustain its burden of establishing the defense that lightning struck Complainant’s residence damaging the “Smart Home” and security systems, which would have relieved Respondent of any responsibility in this matter. RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s License No. K-67.184408-D be suspended on the effective date of the Order entered in Case No. 2011-3994 until the Registrar receives satisfactory written proof, that Respondent has repaired Complainant’s rainwater tank sensors in a workmanlike manner. If the Registrar receives satisfactory written proof that Respondent has repaired Complainant’s rainwater tank sensors in a workmanlike manner on or before the effective date of the Order entered in Case No. 2011-3994, then the above-provided license suspension shall not take place, and the Citation and Complaint in Case No. 2011-3994 shall be closed. In addition to the above-provided disciplinary penalties, Respondent shall pay the sum of $200.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2011-3994 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32- 1101(A), unless such payment of any outstanding prior civil penalty is tendered. 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, April 30, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This finding is based upon Complainant’s testimony at hearing. In his Complaint, Complainant listed his move-in date as February of 2008. [2] The Registrar’s policy memo dated March 18, 1994, provided that “a gratuitous repair is defined as being performed at no charge, without obligation and outside the two-year statute of limitations in [A.R.S.] § 32- 1155 or outside of any lesser time period adopted by the agency (e.g., the Minimum Workmanship Standards).” [3] Inspector Schweiger retired from the Registrar. [4] Inspector Redman retired from the Registrar but he did testify at the hearing.

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