ALJDEC decisions subject to certification as final

2011A-4284-ROC · Registrar of Contractors · 2012-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2012, at 8:00 a.m. APPEARANCES: Complainant Joyce Tetreault was represented by Byron Sarhangian, Esq., Snell & Wilmer, L.L.P.; Respondent Freelite, Inc. was represented by Frederick G. Gamble, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.074721-R to Freelite, Inc. (“Respondent”). 2. On or about July 26, 2011, the Registrar received a complaint from Joyce Tetreault (“Complainant”) alleging twelve specific complaints about Respondent’s installation of three large exterior doors at her house at 3438 East Oregon Avenue in Phoenix, Arizona. Complainant requested that to resolve her complaint, the Registrar require Respondent to “[r]emove incorrectly installed doors” and to “[r]eimburse homeowner for all damage caused to home.” 3. The Registrar’s assigned inspector, Jeff Fleetham, performed a jobsite inspection. On August 30, 2011, Inspector Fleetham issued a Corrective Work Order (“CWO”) that required Respondent to take corrective action with respect to four of the twelve items of complaint within 21 calendar days, in relevant part as follows: 1. Damage to paint and siding of the house during removal of improperly installed doors • Painting was completed prior to removal and replacement of door units. • Respondent shall correct by appropriate means. . . . .

3. Gap between the [tile] floor and threshold of the doors. • Tile grout completed prior to removal and reinstallation of doors • Respondent shall correct by appropriate means. . . . .

9. Failure to repair nail holes in molding. • Painting was completed prior to removal and replacement of door units. • Respondent shall correct by appropriate means. . . . .

12. Additional costs to paint doors after original doors were removed due to [Respondent’s] improper installation. • Painting was completed prior to removal and replacement of door units. • Respondent shall correct by appropriate means.

The CWO did not require Respondent to correct its alleged failure to install the doors according to the manufacturer’s instructions. 4. The Registrar issued a Citation and Complaint against Respondent charging violations of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(13), namely A.R.S. § 32- 1158, and A.R.S. § 32-1154(A)(23). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing. A hearing was held on June 7, 2012. 6. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on June 27, 2012, Respondent’s license was current, one complaint was closed as resolved/settled/withdrawn, and one complaint was pending. / / / / Hearing Evidence 7. In the summer of 2010, Complainant undertook a project to enlarge and remodel her residence. On or about August 3, 2010, the parties signed a written contract that Respondent had prepared to replace seven existing windows and to replace an existing sliding glass door to Complainant’s patio with a fiberglass French door system that contained three manufactured doors. The total contract price was $6,823.25, payable one-half down for Respondent to begin the work and one-half due upon its completion of the work.[1] 8. Respondent’s form for the August 3, 2010 contract did not notify Complainant of her right to make a complaint to the Registrar or include Respondent’s license number, an estimated completion date, or the Registrar’s telephone number or website address. 9. Respondent measured the existing opening for the patio door and instructed its supplier to assemble the three pre-hung doors for the system to fit the existing opening in the exterior masonry wall at Complainant’s residence. 10. Unbeknownst to Respondent, Complainant intended the door system to be installed in the wood-framed addition that other contractors constructed after Respondent had measured the existing opening. In approximately December 2010, Respondent installed the door system in the opening in the exterior framed wall of the new addition. Complainant was dissatisfied with the system’s appearance. Respondent agreed that the door system needed to be repaired but declined Complainant’s request to remove the doors and to refund Complainant’s money. 11. Over the next several months, the parties negotiated the actions that Respondent would need to take to satisfy Complainant. On or about May 12, 2011, Complainant and Respondent’s representative signed a Punch List Agreement that Complainant’s son, who is an attorney, had drafted.[2] 12. The May 12, 2011 Punch List Agreement required Respondent to replace the three doors that it had previously installed with new doors from the same manufacturer with the same model number. 13. The May 12, 2011 Punch List Agreement excluded painting. 14. Respondent’s qualifying party and officer, Chester Tolles Marvin, Jr., testified that repairing paint, siding, and nail holes (CWO Items 1, 9, and 12) were within the painter’s scope of work and expressly excluded in the May 12, 2011 Punch List Agreement. 15. Mr. Marvin also testified that the gap where the grout was missing in the tile floor (CWO Item 3) was beyond Respondent’s scope of work. 16. Inspector Fleetham testified that the Registrar requires a contractor to restore the areas surrounding a repair to their condition before the contractor performed the repair. 17. Inspector Fleetham described the siding on Complainant’s residence as an engineered product made from fibers that were pressed and glued together. 18. Complainant testified that three contractors had told her that the siding could not be repaired and would have to be replaced. Complainant submitted three bids from appropriately licensed contractors to replace all of the siding on the rear elevation of her house, where Respondent had torn the siding in several small areas when it installed the second set of doors.[3] 19. Mr. Marvin testified that although he did not believe that repairing the siding was within Respondent’s scope of work under the Punch List Agreement, Respondent was willing to comply with the CWO. Mr. Marvin testified that the proposals to replace the siding on the entire rear elevation were absurd because the siding was divided with decorative slats that would hide any seams. In addition, Mr. Marvin testified that Respondent’s licensed painting subcontractor had shown him that the subcontractor could repair the torn siding with plaster of paris and shellac to make the repairs indistinguishable from the surrounding undamaged siding. 20. Complainant testified that she is a nurse and does not give anyone three chances to perform satisfactory work. Because Respondent already had two chances, she did not agree with the painting subcontractor’s proposed repairs to the torn siding. Therefore, Complainant acknowledged that she did not allow Respondent a third chance to perform satisfactory work to comply with the CWO. 21. Complainant testified that she felt Respondent should have had a written plan for replacing the patio doors and that she did not believe that it installed the doors according to the manufacturer’s specifications. Complainant did not submit any documents to support her testimony. Complainant did not dispute any of the other items that the CWO did not require Respondent to correct. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A). 2. Complainant bears the burden of proof to establish that Respondent violated the charged subsections of A.R.S. § 32-1154(A) by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 3. Complainant did not establish that Respondent departed from or disregarded plans and specifications or any building codes in violation of A.R.S. § 32-1154(A)(2).[6] 4. A contractor is responsible for collateral damage to surrounding areas that its repairs cause. Therefore, Complainant established that Respondent’s failures to repair the paint and siding, to repair the gap between the tile floor and threshold, and to repair the nail holes in the molding (CWO Items 1, 3, and 9) violated A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, in these three respects.[7] 5. The May 12, 2011 Punch List Agreement specifically excluded painting. Therefore, Respondent’s failure to paint the doors (CWO Item 12) does not evidence an additional violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. 6. A contractor must be afforded access and an opportunity to perform corrective work to comply with a CWO before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32- 1154(A)(23).[8] Complainant may not dictate Respondent’s repair methods because as a licensed contractor, Respondent is presumed to have the expertise to accomplish repairs according to the Registrar’s standards. If Respondent’s repairs do not meet the Registrar’s standards, Complainant may request a compliance hearing. Because Complainant acknowledged that she did not allow access for Respondent to comply with the CWO, she did not establish that Respondent violated A.R.S. § 32-1154(A)(23). 7. Respondent acknowledged that its August 3, 2010 contract did not comply with A.R.S. § 32-1158(B).[9] Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(13).[10] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, the Registrar suspend Respondent Freelite, Inc.’s License No. B.074721-R until it has repaired CWO Items 1, 3, and 9, and has modified its contract forms to comply with A.R.S. § 32-1158(B). It is further recommended that the Registrar close Complainant Joyce Tetreault’s complaint in Case No. 2011-4284 if on or before the effective date of the Registrar’s order, Respondent provides written proof that is acceptable to the Registrar of the following: 1) Respondent has corrected CWO Items 1, 3, and 9 in a professional and workmanlike manner, or Complainant has denied Respondent reasonable access to perform these corrections; and 2) Respondent has modified its contract forms to comply with the requirements of A.R.S. § 32-1158(B). 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 28, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Complainant’s Ex. 2. [2] See Complainant’s Ex. 5. [3] See Complainant’s Ex. 7. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] A.R.S. § 32-1154(A)(2) 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] A.R.S. § 32-1154(A)(3) 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.” A.A.C. R4-9-108 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] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” (Emphasis added.) [9] A.R.S. § 32-1158(B), provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and include the following minimum terms: 1. The . . . contractor’s . . . license number. . . . . 4. The estimated date of completion of all work to be performed under the contract. . . . . 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . . [10] A.R.S. § 32-1154(A)(13) 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.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826