ALJDEC decisions subject to certification as final

2011A-5529-ROC · Registrar of Contractors · 2012-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 26, 2012, at 1:00 p.m. APPEARANCES: Complainants appeared through Cheryl Washington. Respondent appeared through its authorized representative, Eric Johansson. 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. Respondent is the holder of License No. KB-2.236035-D issued by the Registrar of Contractors. 2. This is a residential matter where Respondent installed new double exterior doors (“French doors”) on the exterior of Complainant’s residence. 3. Complainant observed that the new French doors in her residence leaked during heavy rains and notified Respondent of the leaking problem. 4. When the Respondent failed to resolve the leakage problem to the Complainant’s satisfaction, she filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on November 1, 2011, prepared a written Corrective Work Order directing Respondent to perform designated corrective work on the Complainant’s French doors. 6. Respondent then contacted the assigned Agency Inspector and asserted that the threshold for French doors had been properly corrected by Respondent. 7. On December 16, 2012, the assigned Agency Inspector returned to Complainant’s residence and conducted a twelve minute water test on the French doors, utilizing enough water to replicate what the Inspector thought of as representing a rain shower. The threshold for the French doors did not leak under the simulated rain shower conditions. 8. On December 19, 2011, the assigned Agency Inspector issued a letter informing the parties that a citation would not be issued in this matter based on the following determination: This report supersedes the corrective work order dated 11/01/2011. Item two has been revised as the result of a water test performed on 12/16/2011. 1. Double exterior rear doors do not close or seal properly allowing for bug, water and dust infiltrations. “…the adjustment of doors and weather stripping become a home owners maintenance issue after the first year of occupancy; exterior door warping, splintering and exposing unfinished areas are the responsibility of the contractor one time within the first year”*; the time constraint for both these items have been exceeded, no action required of the contractor. 2. During heavy rains water seeps past the door threshold into the house interior-it is the opinion of this inspector, after the administration of a water leakage test, that the door threshold performed as required, no action required of the contractor. *AZROC Workmanship standards for Licensed Contractors June 2009.

9. Complainant disagreed with the assigned Agency Inspector’s determination to withdraw the November 1, 2011 Corrective Work Order and requested an administrative hearing. 10. Complainant testified that the threshold of the exterior French doors in her residence leaks whenever there is a heavy rain and asserted that the assigned Agency Inspector failed to apply enough water directly against the door during the water test. 11. The assigned Agency Inspector opined that with enough horizontal water pressure he could get any exterior door to leak and that the exterior French doors in Complainant’s residence were installed in accordance with applicable industry and workmanship standards. 12. The Registrar of Contractors does not apply the standard of perfection when judging workmanship. The same industry standards are to be applied regardless of the value of the home, and that standard, as applied by the Registrar, is whether the workmanship involved is within applicable industry standards for good and proper workmanship. 13. The credible testimony and evidence of record is insufficient and fails to support a finding that Respondent’s workmanship on the French doors in Complainant’s residence fails to comply with applicable workmanship and industry standards. 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 this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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 to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 3. Complainant failed to sustain her burden of proof to establish that Respondent violated the applicable charged section of the state’s contracting laws. Therefore, the credible evidence of record did not sustain a finding of a violation by Respondent of the charged provisions 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).

RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, April 4, 2012. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to: William A. Mundell, Director Registrar of Contractors

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