ALJDEC decisions subject to certification as final

2012A-1566-ROC · Registrar of Contractors · 2012-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2012

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by General Manager Randy Jordan, accompanied by Installation Manager Brian Bernard.

WITNESSES: Daryl McCloskey, ROC Inspector Patricia Marshall Terence Marshall Randy Jordan Brian Bernard

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action against Respondent alleging poor workmanship with regard to replacement of windows and glass doors in Complainants’ house. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record, along with an Exhibit packet prepared by Complainants. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding poor workmanship and recommending corrective work and a civil penalty. FINDINGS OF FACT 1. Respondent is the holder of License No: B-3.260027-R, a general remodeling and repair residential contracting license issued by the Registrar. Diane Jordan is the Qualifying Party on the license. 2. In January 2012, Complainants hired Respondent to install new doors and windows at their home. After Complainants filed an ROC complaint about various aspects of Respondent’s work, ROC Inspector Daryl McCloskey issued a Corrective Work Order (“CWO”) dated April 16, 2012. That CWO order correction of five items THE RESPONDENT IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEM(S) AND ALL ITEMS TO BE INSTALL [sic] AS PER THE CONTACT WRITTEN AND / OR VERBAL.

1) THE CRACKED ARCH WINDOW ON THE SOUTHEAST SIDE OF THE HOUSE. 2) THE WRONG SIZE WINDOWS IN THE EAST SIDE OF THE HOUSE. 3) INSTALL THE WINDOW ABOVE THE NORTH SIDE PATIO DOORS. 4) INSTALL THE NORTH SIDE PATIO DOORS. 5) THE GLASS IN THE PATIO DOORS SHOULD BE THE SAME AS THE REST OF THE NEW WINDOWS.

On May 25, 2012, Inspector McCloskey issued another CWO that stated: THE CORRECTIVE WORK ORDER THAT WAS ISSUED ON APRIL 16, 2012 WITH THE FIVE (5) ITEMS THE NEEDED TO BE CORRECTED ARE STIL [sic] THE SAME AND NEED TO BE CORRECTED. ON THE DENIAL OF ACCESS CLAIM I BELIEVE THAT THERE HAS NOT BEEN A DENIAL OF ACCESS, ON THE PART OF THE COMPLAINANT.

Then on August 10, 2012, another CWO was issued as follows There some of items [sic] listed on Corrective Work Order issued on April 16, 2012 that have not been completed or completed and the work is not to workmanship standards. These items are that the doors do not match the upper windows, The East windows are the wrong size and the arch window on the Northeast side of the house (that was damage and replaced) has screws that do not match the window frame color. The doors on the North side of the house the threshold are soft and the filler under the threshold is cracking out.

3. At the hearing, Complainants stated that items 1, 2, and 5 were still in need of correction. 4. Inspector McCloskey testified at the hearing about a pre-hearing inspection he performed on December 4, 2012. Only Complainants were present. He noted several problems with the existing workmanship: 1) with regard to the arched window, the cracked window had been replaced but had a crack in the caulking, the top of the window was loose and not secured in the frame, and the screws securing the frame did not match the frame color; 2) wrong size windows on the east side of the house, along with cracked caulking; 3) the patio doors thresholds are soft and loose; and 4) the glass in the patio doors still does not match the tint of the glass in the windows. 5. Randy Jordan did not have knowledge of the current state of the items, but testified that Respondent is willing to make the corrections identified by the inspector. With regard to the glass tint, Respondent asserted that putting a film tint on the glass will cause the shade of the door glass to match that of the window glass. 6. Complainants’ main issue is the patio door glass. Complainants object to the proposal of putting film on the glass. However, there is no evidence in the record showing that such a corrective action does not meet workmanship standards. Without such evidence, this tribunal cannot find that the proposed action should be prohibited. Instead, the corrective order remains that Respondent should correct the condition “by appropriate means.”[1] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainants have met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). The evidence shows that Respondent has not met workmanship standards and did not fully comply with the CWOs. 3. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on December 21, 2012. That prior record shows that Respondent has held the license since December 2009 and has not had any disciplinary actions. This is a good record. 5. The appropriate sanction in this matter is to require Respondent to perform the corrective work as described above in Finding of Fact 4. If Respondent does not do so in a timely manner, the license should be suspended. In addition, a civil penalty is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that License No: B-3.260027-R, held by Creative Edge Construction of Arizona LLC be suspended beginning the effective date of the Registrar’s Order unless the Registrar receives, and accepts, written proof that Respondent has made the corrections noted in Finding of Fact 4 above. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and Case No. 2012-1566 shall be closed. IT IS FURTHER RECOMMENDED that, along with the provisional suspension above, Creative Edge Construction of Arizona LLC pay a civil penalty of $350.00 to the ROC pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty, on or before 30 days following the effective date of the ROC Order entered in this matter, shall result in the automatic revocation of Respondent’s license, effective on the 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)(5), unless payment of any outstanding prior civil penalty is made.

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, December 21, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Complainants raised a contractual issue with regard to the glass at the hearing. However, because the only issues cited in the Citation and Complaint concern workmanship and compliance with the CWO, the Administrative Law Judge will not address the contractual issue. Complainants have the court system in which to present any contract claims. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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