ALJDEC decisions subject to certification as final

2011A-4320-ROC · Registrar of Contractors · 2012-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 25, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Richard Main. 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. The Respondent is the holder of a Class K-61 (No. 264537) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a construction agreement with the Complainant to replace the Complainant’s existing windows and exterior doors with new more energy efficient windows and doors for the total sum of $15,600.00. 3. There was no dispute that on June 14, 2010, the parties entered into a contract amendment (Exhibit No. C-7) which provides, in pertinent part, as follows: “Vinyl MI Homeowner windows ordered as storefront which includes 6 rectangular and 1 round window.”

4. When the Respondent completed its construction work, the Complainant was dissatisfied with the fact that the new front door was a 32 inch wide door, rather than a 36 inch wide door, and with the fact that the windows in west end of the living room were not vinyl double pane windows. 5. The Complainant notified the Respondent of his dissatisfaction and requested that the Respondent properly replace the 32 inch wide door with a 36 inch wide door and replace the windows in the west end of the living room with vinyl double pane windows. 6. When the Respondent refused to comply with the Complainant’s requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 12, 2011, issued a written Corrective Work Order. 8. The Corrective Work Order provides, in pertinent part, as follows: Contractor to correct the following: 2. Windows in east side of living room and window in east side of sunroom are not vinyl double pane windows: Needs to be properly corrected, punch list signed by the respondent [Sic.] states all windows to be vinyl. No action is required on the following. 1a. Front entry door is 32”.0 and should be 36”.0: 32 inch door is installed; I could not determine the extent of the contractor’s responsibility as door width is not specified in contract....

9. Credible testimony and evidence established that the Respondent declined to comply with the terms of the Corrective Work Order on the basis that the parties’ contract did not specify vinyl windows. 10. There was no dispute that the Respondent did not comply with the terms of the Corrective Work Order. 11. Credible testimony and evidence established that the written punch list (Exhibit No. C-21) signed by the Respondent does provide that all windows are vinyl. 12. There was no dispute that the windows in the east side of the living room and the window in the east side of the Complainant’s sunroom are not vinyl windows as per the signed punch list. 13. Credible testimony and evidence established that the Respondent’s failure to install the agreed upon vinyl windows constitutes an unauthorized departure or disregard of plans or specifications. 14. Credible testimony and evidence established that the Respondent’s failure to install the agreed upon vinyl windows constitutes a violation of applicable workmanship and industry standards. 15. There was no dispute that the new front door in the Complainant’s residence is a 32 inch wide door. 16. There was no dispute that the previous entrance door in the Complainant’s residence was a 36 inch wide door. 17. Credible testimony and evidence established that Complainant did not agree to the replacement of the 36 inch wide front door with a new 32 inch front wide door. 18. Credible testimony and evidence established that the Respondent chose to install the 32 inch wide door rather than a 36 inch wide door without the Complainant’s authorization to reduce the size of the front door. 19. Credible testimony and evidence established that applicable building codes (Exhibit C-10) require that there be at least one exit door for each residence and that the required exit door must be not less than 36 inches in width and 6 feet 8 inches in height. 20. The Respondent asserted that the code requirement was met by the fact that the Complainant’s back door was a 36 inch wide door. 21. Credible testimony and evidence established that the Complainant’s back door could only be reached by passing through a 27 inch hallway leading to the back door. 22. Credible testimony and evidence established that the Respondent was aware of the fact that the 36 inch wide rear door could only be accessed by passing through a 27 inch wide hallway before the Respondent installed the new 32 inch wide entrance door in the Complainant’s residence. 23. Credible testimony and evidence established that with the installation of the new 32 inch wide front door the seventy five year old Complainant and his wife lack the code required egress to exit their residence in the event of an emergency. 24. Credible testimony and evidence established that the Respondent’s installation of the 32 inch wide door in the Complainant’s residence fails to comply with applicable building code requirements. 25. Credible testimony and evidence established that the Respondent’s installation of a 32 inch wide door in violation of applicable building code requirements and without the authorization of the Complainant is in violation of applicable workmanship and industry standards. 26. Credible testimony and evidence established that in this matter, the Respondent repeatedly operated under the name of Sierra Vista Glass and Remodeling than Sierra Vista Glass Inc., as shown on its license with the Registrar of Contractors. 27. The credible evidence of record is inadequate and fails to support a finding that the Respondent failed to properly display its License as per A.R.S. § 1124 B. 28. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437- 38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Credible testimony and evidence supported findings which establish that violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A)(2) (departure for or disregard of plans or specifications or any building codes), A.R.S. § 32-1154 (A) (acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. The credible evidence of record was inadequate and failed to support a finding that the Respondent failed in any material respect comply with the provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the Corrective Work Order issued in this matter and has properly replaced the inch front door with a 36 inch front door, and that the Registrar of Contractors has further been provided acceptable proof that the Respondent is operating under the name set forth on its License in full compliance with the provisions of A.R.S. § 32-1154 (A) (15). It is further recommended that if the above-required proof has been provided to the Registrar of Contractor, on or before the effective date of this Order, then the above provided License suspension shall not take place, and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154 D. The failure by the 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 this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (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, February 10, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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