ALJDEC decisions subject to certification as final

2012A-1970-ROC · Registrar of Contractors · 2012-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2012, at 8:00 a.m. APPEARANCES: Anne Marie Summons (hereinafter “Complainant”) appeared on her own behalf. G M Window Installations LLC (hereinafter “GM”) appeared through its qualifying party, Gabriel Arturo Manriquez. 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. GM is the holder of License No. C-7R.268099-R issued by the Registrar of Contractors. 2. This is a residential matter where Complainant entered into a construction agreement with GM for the removal and replacement of the windows and sliding glass doors in her residence for the sum of $4,694.00. 3. Complainant was dissatisfied with GM’s workmanship and filed a formal Complaint against GM with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on May 1, 2012, directing GM to perform designated corrective work on Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means: 1. Never gave me a copy of my signed contract: Need to provide contract. 2. Did not secure the windows to my home in a workman like fashion, using some screws on some windows and caulk in excess on all of them to hold them in place, but you did not screw at least windows to my home at all: Several windows are not properly secured and have excess caulk between the old frames and new and along the new window frames and drywall. 3. Lied about products he was going to use; said he was going to use spray insulation between the openings of the old and new windows and when questioned about it, showed me an old, used can from his truck, but no evidence of the product used on site: Only the upstairs bath window has a small amount of foam insulation. 4a. Did not measure correctly; at least 3 of my windows are too small: 3 windows are too small and excessive caulk was used to fill void. 4b. Wood trim around 2 others must be replaced: Outside trim of kitchen and upstairs landing window is cut short and has large gaps at the joints. 4c. There is a .25 inch gap between the old frame and new windows, with sunlight seen between the windows: Several windows have a gap between the frames that allows sunlight to be seen, vinyl trim was used to cover areas. 5. Damaged stucco/paint on and around my security bar: Security bars at entry and kitchen windows have stucco damage at the points of attachment. 6a. Used trim, improperly installed to cover up shoddy work: Vinyl interior trim around windows is not properly installed and is covering some poor workmanship. 6b. Didn’t shim windows, so they bow in the middle: Several windows are not plumb and level. 7. Used excessive caulk to secure windows, and used it over old, damaged drywall so the seal is rendered useless. Plus used too much in kitchen, looking like cottage cheese and a 2 inch smear on sill: Needs to be properly corrected. 8. One inch tear in guest br screen: tear in screen. 9. Ran out of material/caulk, used a different type of caulk on one window: Windows are tan and white caulk was used. 10. Re-installed my security bars on top of and touching my new window in kitchen: Bars are installed improperly. [11]. Didn’t finish installation; left bathroom window [“]half done” and did not install 3 sliding glass doors: Need to complete contract. 12. Quality of workmanship is non-existent; mitered corners not square, windows not square, improper trim used, no plastic plugs: All work needs to meet workmanship standards. 13. I now have to repaint my exterior and kitchen, an unexpected cost: Drywall around window has been damaged by the installation. 14. Predatory Contracting: I lack jurisdiction.

6. Inspector Nieves testified that he verified all of the workmanship items on the Complaint. Inspector Nieves stated that he performed a pre- hearing inspection at Complainant’s residence on November 26, 2012.[1] 7. Inspector Nieves testified that no corrective work had been performed at Complainant’s residence. Inspector Nieves stated that the work performed by GM failed to comply with applicable workmanship standards. Mr. Nieves stated that most of the items on the Corrective Work Order can be corrected. Mr. Nieves testified that some of the items on the Corrective Work Order presented a health and safety danger.[2] 8. Inspector Nieves testified that the very loose window in Complainant’s son’s bedroom and the inoperable window installation in the kitchen constituted health and safety dangers to the occupants of the residence.[3] 9. Eric Johnson (hereinafter “Mr. Johnson”) testified that he is the owner of Build Right Builders (License No. B.275746-R) and that he inspected GM’s work at Complainant’s residence. Mr. Johnson stated that the upstairs windows installed by GM were the wrong size and were improperly installed. Mr. Johnson testified that GM either improperly measured the window openings in Complainant’s residence or used stock windows that were the wrong size.[4] 10. Mr. Johnson testified that he observed that GM failed to correct the damage that it caused to Complainant’s drywall, trim and stucco during the window installation process. Mr. Johnson stated that he did not believe that the windows in Complainant’s residence could be corrected and opined that the windows should be removed and replaced with new windows.[5] 11. Complainant testified that she retained GM to remove and replace eight windows and three sliding glass doors in her residence. Complainant stated that GM worked one-half day and then hurriedly left her residence. Complainant testified that when she unlatched the new window in her son’s room, she observed that the window bowed out approximately one-half inch.[6] 12. Complainant testified that GM failed to securely install the new windows in her residence and attempted to utilize excessive amounts of caulking to secure the windows. Complainant stated that she can see daylight around some of the windows. Complainant testified that GM damaged her residence while it was installing the new windows.[7] 13. Complainant presented numerous photographs of the construction work performed by GM in her residence.[8] Complainant testified that the windows installed by GM allowed rain water to “pour” into the interior of her residence. Complainant stated that the water penetration has caused interior damage in her residence.[9] 14. Complainant testified that when the new windows were installed, GM informed her that the window installation was complete with the exception of the bathroom and that GM would return to her residence to install the sliding glass doors.[10] 15. Complainant testified that if she gave the window in her four-year-old son’s room a hard push, the window would fall out. Complainant stated that she is very concerned about the safety of her child and feels that the current window installation is unsafe.[11] 16. Complainant testified that she spoke with the window manufacturer and that the manufacturer informed her that GM had failed to install the new windows in accordance with the manufacturer’s recommendations.[12] 17. Complainant testified that the three sliding glass doors are still located in her back yard and are exposed to the elements. Complainant stated that GM did not contact her within the time period set forth in the Corrective Work Order.[13] 18. GM’s Qualifying Party, Gabriel Arturo Manriquez (hereinafter “Mr. Manriquez”), acknowledged that GM had failed to provide Complainant with a copy of the parties’ construction agreement. Mr. Manriquez stated that it was a small contract and the parties’ agreement was “mostly verbal.”[14] 19. Mr. Manriquez testified that GM had not finished the installation of the windows in Complainant’s residence. Mr. Manriquez stated that GM had not fully sealed the new windows because GM intended to return and complete the construction project.[15] 20. Mr. Manriquez testified that water damage was already present in Complainant’s residence and that Complainant had agreed to “take care” of the water damage. Mr. Manriquez stated that the bathroom window was not completed because GM did not have sufficient trim materials to complete the window installation. Mr. Manriquez testified that he informed Complainant of the problem with the bathroom window before GM left the construction project.[16] 21. Mr. Manriquez testified that it was never his intention to abandon Complainant’s construction project. Mr. Manriquez stated that Complainant was responsible for all paint touch-up.[17] 22. Mr. Manriquez testified that he offered to perform the corrective action directed in the Corrective Work Order. Mr. Manriquez stated that Complainant denied GM an opportunity to perform the directed corrective action. Mr. Manriquez testified that Complainant refused to allow him into her house for the pre-hearing inspection.[18] 23. Mr. Manriquez testified that it is obvious that GM’s construction work at Complainant’s residence is not complete. Mr. Manriquez stated GM did not receive the May 1, 2012 Corrective Work Order. Mr. Manriquez testified that he contacted Inspector Nieves and that Inspector Nieves mailed GM a second copy of the Corrective Work Order. Mr. Manriquez stated that upon receipt of the Corrective Work Order, he emailed Complainant on May 20, 2012. Mr. Manriquez testified that he received no response to his email.[19] 24. Mr. Manriquez’s email of May 20, 2012 (Sunday, May 20, 2012, at 12:07 p.m.), provides in pertinent part as follows: I just received in the mail the corrective work order from the registrar of contractors. Like I offered to you before. I am willing to finish the job and make the necessary repairs that are on the corrective work order. Please contact me to set up a date for us to finish the project.[20]

25. Mr. Manriquez testified that he also mailed a copy of the May 20, 2012 email to Complainant. Mr. Manriquez acknowledged that Inspector Nieves was correct in finding that portions of GM’s construction work at Complainant’s residence constituted a health and safety danger to Complainant and Complainant’s son. Mr. Manriquez stated that the job was not complete and that GM was willing to complete the construction project and fully comply with the terms of the Corrective Work Order.[21] 26. Mr. Manriquez testified that the windows for Complainant’s residence were custom ordered to fit the window openings in Complainant’s residence. Mr. Manriquez stated that the windows do not appear to fit the window openings because the drywall around the openings has not been corrected. Mr. Manriquez stated that the windows are installed in accordance with industry standards. Mr. Manriquez testified that Complainant agreed to type of window installations performed by GM.[22] 27. Mr. Manriquez testified that Complainant had refused to allow GM to perform the directed corrective work by failing to respond to his email of May 20, 2012. Mr. Manriquez acknowledged that the only attempt that GM made to contact Complainant to attempt to comply with the terms of the Corrective Work Order was the May 20, 2012 email that was allegedly transmitted to Complainant electronically and by the mail.[23] 28. Mr. Manriquez testified that GM made no effort to contact Complainant by telephone. Mr. Manriquez acknowledged that he allegedly transmitted the email to Complainant the day before the twenty-day period set forth in the Corrective Work Order expired.[24] 29. Mr. Manriquez testified that he gave a copy of the May 20, 2012 email to Complainant on the day of the pre-hearing inspection. Mr. Manriquez acknowledged that GM failed to provide Complainant with a copy of the contract until the day of the hearing.[25] 30. Mr. Manriquez acknowledged that GM failed to utilize a sufficient number of fasteners for the window installations in Complainant’s residence.[26] 31. Complainant testified that GM did not contact her within the twenty-day period set forth in the Corrective Work Order. Complainant stated that she did not allow GM into her residence during the pre-hearing inspection because she had lost confidence in GM’s abilities.[27] 32. Administrative notice is taken of GM’s prior license record as reflected on the Registrar of Contractors’ public website on November 29, 2012. Such prior license record reflects that License No. C-7R.268099-R of GM is current. 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 these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law Of Evidence § 5 (1960). 3. All of the construction items in Complainant’s Complaint were verified by the assigned Agency Inspector as failing to comply with applicable industry standards. There was no dispute that at least two of the window installations performed by GM in Complainant’s residence constitute possible health and safety dangers to Complainant and her family. This Tribunal concludes that GM violated the charged provision of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[28] 4. The parties’ contract fails to provide an estimated date of completion and does not inform the property owner of her right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32- 1154(A). The contract fails to contain the minimum elements of a contract required by applicable statute.[29] There was no dispute that GM failed to provide Complainant with a copy of the parties’ contract until the date of the hearing. This Tribunal concludes that GM violated the charged provision of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32- 1158.[30] 5. GM failed to comply with the terms of the Corrective Work Order issued in this matter despite the fact that GM knew, or should have known, that portions of the construction work performed by GM constituted possible health and safety dangers to Complainant and her family. This Tribunal concludes that GM violated the charged provision of A.R.S. § 32- 1154(A)(23).[31] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C-7R.268099-R of GM shall be revoked unless the Registrar of Contractors receives and accepts written proof that GM has, at GM’s sole expense, paid a properly licensed contractor, selected by Complainant, to fully comply with the terms of the written Corrective Work Order and has brought its contracts into full compliance with the requirements of A.R.S. § 32-1158. It is further recommended that if on or before the effective date of this Order, GM provides acceptable written proof to the Registrar of Contractors that GM, at GM’s sole expense, has paid a properly licensed contractor selected by Complainant to fully comply with the terms of the Corrective Work Order and provided acceptable written proof to the Registrar of Contractors that GM’s contracts are in full compliance with the provisions of A.R.S. § 32-1158, then the above-provided License revocation shall not take place and that License No. C-7R.268099-R of GM shall be suspended for a period of 15 days. It is further recommended, in addition to the above-provided penalties, if any, that GM pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by GM 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 GM’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with GM as defined in A.R.S. § 32-1101(A)(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, December 3, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 11/28/12 Hearing Record (hereinafter “H.R.”) at 15:20-17:29. [2] H.R. at 17:30-20:15. [3] H.R. at 20:17-20:50. [4] H.R. at 21:25-24:37. [5] H.R. at 24:39-31:35. [6] H.R. at 35:00-37:05. [7] H.R. at 41:47-44:48. [8] See Exhibit No. C-2 (Notebook with 23 81/2” x 11” photographs). [9] H.R. at 44:49-51:08. [10] H.R. at 51:09-52:00. [11] H.R. at 52:01-53:28. [12] H.R. at 53:29-54:47. [13] H.R. at 54:48-57:34. [14] H.R. at 57:43-59:30. [15] H.R. at 59:31-1:00:39. [16] H.R. at 1:00:40-1:02:16. [17] H.R. at 1:03:40-1:04:50. [18] H.R. 1:04:52-1:05:07. [19] H.R. 1:05;08-1:07:16. [20] See Exhibit No. R-3 (Email, Sunday, May 20, 2012 at 12:07 p.m.). [21] H.R. 1:07:17-1:11:44. [22] H.R. at 1:11:45-1:15:07. [23] H.R. at 1:15:08-1:17:23. [24] H.R. at 1:17:45-1:18:42. [25] H.R. at 1.18:43-1:20:20.. [26] H.R. at 1:26:39-126:45. [27] H.R. at 1:31:39-1:32:08. [28] A.A.C. R4-9-108 provides, in pertinent part, as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[29] See Exhibit No. R-2 (3/12/12 Contract). [30] A.R.S. § 32-1158 provides, in pertinent part, as follows: A. From and after December 31, 1992 until December 31, 2007, any contract in an amount of more than one thousand dollars and less than one hundred fifty thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. B. From and after December 31, 2007, 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 shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction 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 at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner. D. The requirements of this section shall not constitute prerequisites to the formation or enforcement of a contract. Failure to comply with the requirements of this section shall not constitute a defense by either party to an action for compensation, damages, breach, enforcement or other cause of action based on the contract.

[31] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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