ALJDEC decisions subject to certification as final

2012A-2570-ROC · Registrar of Contractors · 2012-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2012, at 1:00 p.m. APPEARANCES: Cathe Gattian (now Cathe Powers) (hereinafter “Complainant”) appeared on her own behalf. J C Construction Inc., dba Camp Construction (hereinafter “Camp”) appeared through its qualifying party and owner, Gerald Robert Camp. 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. Camp is the holder of License No. KB-1.214613-D issued by the Registrar of Contractors. 2. This is a residential matter where Camp installed a new front door in Complainant’s residence. 3. Complainant was extremely dissatisfied with the new door that Camp installed and requested that the new front door be removed and replaced with a front door that complied with the terms of the parties’ construction agreement. When Camp failed to comply with her request, Complainant filed a formal Complaint against Camp 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 June 5, 2012, directing Camp to perform designated corrective work on Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: 1. The new door is not wood [;] it’s a fiberglass door and the contract called for a wooden mahogany door: Door does have the texture and appearance of mahogany but appears to be of a composite or fiberglass [;] need to install correct type of door.

6. Camp then contacted the door manufacturer. The door manufacturer maintained that the new door was a mahogany door. Camp declined to comply with the terms of the Corrective Work Order and Complainant requested an administrative hearing. 7. Inspector Nieves testified that he conducted an onsite inspection at Complainant’s residence and observed that the new front door installed in Complainant’s residence by Camp was not a wooden door. Mr. Nieves stated that the new front door appears to be a composite or fiberglass door rather than a wooden mahogany door as specified in the parties’ written construction agreement.[1] 8. Inspector Nieves testified that Camp contacted him and inquired if Camp could file a complaint with the Registrar of Contractors against the door manufacturer because Camp had ordered a mahogany door for Complainant’s residence and the manufacturer had delivered a fiberglass door. Inspector Nieves stated that he informed Camp that the Registrar of Contractors had no jurisdiction over the door manufacturer.[2] 9. Inspector Nieves testified that there was no pre-hearing inspection because no further work had been performed on Complainant’s residence.[3]

10. Inspector Nieves testified that the parties’ construction agreement provided that the new front entry door was to be a mahogany door but does not provide that it is to be a wooden mahogany door.[4] 11. Complainant’s husband, Dennis Raymond Powers (hereinafter “Mr. Powers”), testified that he was present when the construction agreement was made. He stated that it was agreed that the new door would be solid mahogany wood. Mr. Powers testified that the new door that Camp installed is not a mahogany door and was not a dual paned door as originally requested by Complainant.[5] 12. Mr. Powers testified that Complainant had selected a mahogany door specifically because it could be easily stained to match the door frame and the interior of Complainant’s residence. Mr. Powers stated that other types of wood were discussed with Camp and that Complainant “emphatically” wanted a mahogany door. Mr. Powers testified that he is a public school teacher and has spent a portion of his career as a wood shop teacher.[6] 13. Complainant testified that Camp was unsure of what she wanted in a front door so she provided him with a photograph.[7] Complainant stated that Camp then provided her with the parties’ construction agreement.[8] Complainant testified that when the door was replaced she was out of town and after her parents’ verified that the new door was installed, she paid Camp in accordance with the parties’ construction agreement.[9] 14. Complainant testified that when she first saw the new front entry door, she observed that it was not a wooden door. Complainant stated that she immediately contacted Camp and expressed her dissatisfaction with the new door.[10] 15. Camp’s qualifying party and owner, Gerald Robert Camp (hereinafter “Mr. Camp”), acknowledged that Complainant’s new front door was supposed to be a wooden mahogany door. Mr. Camp stated Camp ordered a wooden mahogany door from the manufacturer. Mr. Camp testified that the manufacturer maintains that the new door installed by Camp is a mahogany door.[11] 16. Mr. Camp testified that when he first saw the door installed in Complainant’s residence, he was pretty shocked. Mr. Camp stated that the new door does not have a lot of wood grain. Mr. Camp testified that he contacted the door manufacturer and that the door manufacturer failed to return his telephone calls.[12] 17. Mr. Camp testified that he was not present when the new door was installed. Mr. Camp stated that Camp’s superintendant installed the new door in Complainant’s residence.[13] 18. Mr. Camp testified that there was nothing Camp could do about the door. Mr. Camp stated that it was the manufacturer’s responsibility because they sold the door to Camp with the representation that it was a mahogany door. Mr. Camp testified that the manufacturer should replace the new door.[14] 19. Mr. Camp testified that Camp had attempted to resolve the complaint by filing written complaints against the manufacturer with the Better Business Bureau and the State Attorney General’s Office.[15] 20. Camp’s internet communications with Complainant failed to include Camp’s license number with the acronym “ROC.” 21. Administrative notice is taken of Camp’s prior License record as reflected on the Registrar of Contractors’ public website on November 20, 2012. Such prior License record reflects that License No. KB-1.214613-D of Camp 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. Camp contracted to install a wooden mahogany front entry door in Complainant’s residence. Camp installed a composite or fiberglass front entry door on Complainant’s residence. Camp is the entity that contracted with Complainant for the installation of a new wooden mahogany front entrance door in the Complainant’s residence, not the manufacturer. Camp is fully responsible for the undisputed fact that Camp installed a composite or fiberglass front entry door rather than the wooden mahogany front entry door specified in the parties’ written construction agreement. This Tribunal concludes that Camp violated the charged provisions of A.R.S. § 32-1154(A)(2)[16] and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[17] 4. Camp failed to include its contractor’s license number with the acronym “ROC” on its internet communications with Complainant. This Tribunal concludes that Camp violated the charged provisions of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B).[18] 5. Camp failed to comply with the terms of the Corrective Work Order. This Tribunal concludes that Camp violated the charged provisions of A.R.S. § 32-1154(A)(23).[19] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. KB-1.214613-D of Camp shall be suspended until the Registrar of Contractors receives and accepts written proof that Camp has fully complied with the terms of the written Corrective Work Order and that Camp has brought its business and communication forms and letters into full compliance with the provisions of A.R.S. § 32-1124(B). It is further recommended that if on or before the effective date of this Order, Respondent provides the Registrar of Contractors with acceptable written proof that it has fully accomplished the above described corrective action and has brought all of its business forms and communications into full compliance with the provisions of A.R.S. § 32- 1124(B), then the above provided License suspension shall not take place and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Camp 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 Camp 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 Camp’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Camp, 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, November 21, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 11/15/12 Hearing Record (hereinafter “H.R.”) at 21:54-22:48. [2] H.R. at 22:49-23:21. [3] H.R. at 23:22-23:58. [4] H.R. at 24:40-24:57. [5] H.R. at 25:30-27:07. [6] H.R. at 27:08-29:35. [7] See Exhibit C-1 (Copy of photograph of mahogany door). [8] See Exhibit No. C-5 (Invoice No. 6496). [9] H.R. at 29:36-32:29. [10] H.R. at 32:30-35:05. [11] H.R. at 37:30-39:05. [12] H.R. at 39:06-39:33. [13] H.R. at 39:34-41:20. [14] H.R. at 41:21-43:33. [15] H.R. at 43:34-44:47. [16] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the 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. [17] 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.

[18] A.R.S. § 32-1124(B) provides, in pertinent part, as follows: Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

[19] 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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