ALJDEC decisions subject to certification as final

2012A-6187-ROC · Registrar of Contractors · 2013-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2013 APPEARANCES: Complainant Jae Richardson appeared on her own behalf. Respondent Sierra Steel Fabricators LLC appeared through William Oetting, a member. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.273025-D to Sierra Steel Fabricators LLC (“Respondent”). The Registrar received a Complaint against Respondent from Jae Richardson (“Complainant”) regarding the repairs to her casement windows at 1301 East Monte Vista Road, Phoenix, Arizona. Complainant cited the failure to replace window hardware, the windows not being flush when closed, inferior/incomplete interior caulking, and damaged stucco. After the Registrar assigned the Complaint to its inspector, Mark Alyea, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Inspector Alyea issued a Corrective Work Order in which he directed Respondent to install the hardware to open and close the windows, replace three window panes as directed in the contract, repair poor interior caulking, clean exterior stucco and caulking, remove red primer pain on the stucco, and correct window glazing on three windows. 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 Alyea testified he performed a pre-hearing inspection, at which he observed some hardware had been installed, but the hardware was not working properly. A hearing was held on October 23, 2013. Inspector Alyea testified about the Registrar’s standards. Complainant submitted one exhibit and testified on her own behalf. Respondent presented the testimony of William Oetting, a co-owner and member of Respondent, and James Polk, General Manager. Hearing Evidence On or about September 29, 2012, Complainant contracted with Respondent to refurbish the casement windows in her historic home. The contract included the stripping of casement frames and prime painting, replace three glass windows, install windows cranks, reseal the outside of window frames, and install new indoor window screens. While Respondent was doing its work, there were multiple issues including interior and exterior caulking, damage to the stucco, red primer on the exterior stucco. During the process, Respondent ordered the hardware for the windows. However, when the hardware was received, it was not correct and Respondent was required to manufacture the hardware itself. Respondent failed to properly communicate the cause of the delay to Complainant. Respondent contacted Complainant to arrange a time to come back to the property and finish the project. Complainant refused to allow Respondent access to the property because she had no confidence in Respondent’s ability to complete the job based on the previous issues and damage to her home. Complainant then filed the Complaint with the Registrar. It was not until after the Complaint was filed that Complainant was notified why the hardware had been delayed. Respondent acknowledged it failed to adequately communicate with Complainant during the process and that the lack of communication was a major contributing factor to the frustrations Complainant expressed. Complainant testified her home was not secure because the hardware was missing and certain windows can be pushed open. Complainant conceded that following the Corrective Work Order, Respondent contacted her because it wanted to complete the corrective work that was ordered to be done. Complainant refused to allow Respondent to complete any corrective work because she did not have any confidence that her home would not be further damaged as a result. 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 Respondent failed to properly install the hardware to open and close the windows, replace three window panes as directed in the contract, repair poor interior caulking, clean exterior stucco and caulking, remove red primer pain on the stucco, and correct window glazing on three windows. Therefore, Complainant established Respondent’s work 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] 4. 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 was willing and able to complete the work required and that Complainant would not allow Respondent access to the property. 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 Sierra Steel Fabricators LLC’s License No. KB-1.273025-D 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 Jae Richardson’s Complaint in Case No. 2012-6187. 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, November 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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