ALJDEC decisions subject to certification as final

2012A-3879-ROC · Registrar of Contractors · 2013-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2013 APPEARANCES: Complainant Laura Hernandez appeared on her own behalf. Respondent Arizona Shower Doors Inc. was represented by Paul Knadler, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 65.138045-R to Arizona Shower Doors Inc (“Respondent”). The Registrar received a Complaint against Respondent from Laura Hernandez (“Complainant”) regarding a leak in her master bathroom resulting from the installation of a shower door at 6514 N 52nd Drive, Glendale, Arizona. Specifically, Complainant stated: Master bathroom granite & baseboards, carpet/water & mold, master vanity & sink, walls, baseboards all damaged. Carpet in master bedroom, 2 children’s bedrooms water damage, front living room carpet water damage. 2 full baths full of mold & rotte[n], air ducts need cleaning, air conditioners full of bacterias & mold, master bedroom pipes damaged by screw. Floors in house are damaged. Granite in hallway restroom mold & rotten. Personal property threw out house clothing. All items in both restrooms. Owed for plumbing clean up $. After the Registrar assigned the Complaint to its inspector, Jim Dimond, for investigation, he performed a jobsite inspection on August 29, 2012. During the jobsite inspection, Inspector Dimond observed a screw through a pipe causing a leak and counted one drip every 15 seconds. Following the jobsite inspection, Inspector Dimond issued a Corrective Work Order in which he concluded that Due to the fact that there was a leak a short time before this respondents [sic] leak was discovered, a previously filed insurance claim for many of the same items, work in the area of the leak by a plumber and a denial of access to this respondent to mitigate damages, it is this Inspector’s finding that this respondent is to correct the screw in the pipe, correct the master bath pipe and the drywall in the immediate area of the leak caused by the screw in an appropriate manner. Furthermore, the repairs directed are outside of the scope of this contractor’s license and shall be performed by properly licensed contractors for the appropriate trade.

Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. Inspector Dimond testified he performed a pre-hearing inspection on January 22, 2013, at which he observed a screw is still through the pipe and the leak was still present. Inspector Dimond counted one drip every 13 seconds. Inspector Dimond observed little water in front of and under the vanity. Complainant informed Inspector Dimond that she would not allow Respondent to correct the leak because there was an outstanding issue of damages. A hearing was held on January 23, 2013. Inspector Dimond testified about the Registrar’s standards. Complainant submitted one exhibit, presented the testimony of Eddie Hernandez, and testified on her own behalf. Respondent submitted one exhibit and presented the testimony of Paul Knadler, its Qualifying Party. Hearing Evidence Complainant contracted with Respondent to install a shower door in her home. Respondent installed the shower door on September 2, 2010. On May 2, 2012, Complainant had a leak in the master bathroom plumbing that caused water damage. Complainant filed a claim with her insurance carrierfor the damages including carpet throughout the main level of the house and a long list of clothing, bedding, and other household items. Complainant received a payment from the insurance carrier to cover her losses. On June 30, 2012, Complainant contacted Respondent to report the screw from the shower door Respondent installed had gone through a supply line to the master bathroom and was leaking. The leak was in the same area as the May 2, 2012 leak. Respondent reported the incident to his insurance carrier. On July 10, 2012, Paul Lewton, an employee of the insurance carrier, conducted an inspection of Complainant’s home. During the course of the inspection, Complainant informed Mr. Lewton: a. Complainant discovered the leak when she returned from being gone for two weeks. b. Complainant observed water on the tile in the hallway and the two bedrooms off the hallway were soaking wet. c. Complainant called a plumber who determined the water was coming from the common wall between the master bathroom and the hallway bathroom.

d. After removing the back of the master bathroom cabinetry and the drywall, the plumber found a screw fastener through the ¾” copper water supply line behind the cabinetry. e. Complainant felt the entire interior wall was full of mold and fungi as well as the carpeting in the bedrooms. f. On June 27, 2012, Complainant had the carpet removed because of the fungi, mold, and smell. At that point, Complainant had not informed Respondent of the leak. g. Complainant had received some estimates and mentioned one in particular that was $21,000. Mr. Lewton indicated he did not observe any evidence of water movement in the dust and on the concrete where the carpet had been removed. Mr. Lewton compared losses claimed in the May 2, 2012 incident to the losses claimed in the present incident and determined there was substantial overlap including the carpeting and cabinetry. On September 24, 2012, Inspector Dimond issued his Corrective Work Order. In the days following, Respondent made several attempts to contact Complainant to arrange a time to complete the required work. Complainant returned one of Respondent’s calls and left a message. When Respondent tried to return the call, Complainant did not answer the phone or respond. On September 25, 2012, the insurance carrier offered Complainant a settlement of $5,538.94 for the damages she sustained. The letter indicated that if Complainant could establish she had replaced the carpet and cabinetry following the May 2, 2012 incident, the offer would increase to $7,659.85. On October 4, 2012, Respondent sent a certified letter to Complainant trying to set up a time to complete the work required by the Corrective Work Order. The letter was sent to Complainant at her mother’s address where she had been staying due to the damage at her home. Complainant did not claim the letter and it was returned to Respondent. Despite numerous attempts to repair the leak, Complainant has refused Respondent access to the home to complete the work. During the course of this Complaint, Complainant has requested cash settlements from Respondent in amounts ranging from $30,000 to $60,000 to cover her losses and to treat the home for mold. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. Undisputed credible testimony established that when Respondent installed a shower door in Complainant’s home, a screw went through the copper supply line to the master bathroom and resulted in a leak. 4. Complainant established Respondent’s work installing the shower door was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 5. A contractor must be afforded access and an opportunity to perform corrective work to comply with a Corrective Work Order before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(23).[2] The credible testimony offered at hearing established Respondent had attempted on numerous occasions to arrange a time to complete the work required in the Corrective Work Order and that Complainant would not respond to Respondent. Because Complainant did not allow access for Respondent to comply with the Corrective Work Order, she did not establish that Respondent violated A.R.S. § 32- 1154(A)(23). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Arizona Shower Door Inc’s License No. C-65.138045-R until it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Laura Hernandez’s Complaint in Case No. 2012-3879. 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, February 12, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” Emphasis added.

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