ALJDEC decisions subject to certification as final

2017A-2918-CHC-ROC · Registrar of Contractors · 2017-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shawn M Johnston,

COMPLAINANT,

v.

Republic West Home Inc. dba,

Panda Home Solutions,

License No: 271058, 271057

RESPONDENT.

No. 2017A-2918-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 18, 2017

APPEARANCES: Complainant Shawn M. Johnston appeared on her own behalf. Respondent Republic West Home Inc. doing business as Panda Home Solutions did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Republic West Home Inc. doing business as Panda Home Solutions (Respondent) is the holder of License No. 271058 and 271057 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 24, 2012, Shawn M. Johnston (Complainant) signed a contract with Respondent for the purchase and installation of new windows in her home.

Following the installation, the stucco around the windows started cracking and the windows started leaking. After numerous failed attempts to correct the problems, in February 2016, Respondent removed and reinstalled all the windows, save one that did not exhibit any issues.

On or about June 5, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Matt Gunstra. After a jobsite inspection, Investigator Gunstra issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 7/21/17.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Stucco cracked around newly installed windows

Directive: Rear window needs stucco finished around it in a workmanlike manner

Complaint Item 3: Water leaks around windows

Directive: Windows should be installed per manufacturer instructions and shall not leak. All damage caused by leaking windows shall be corrected by appropriate means.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent made no attempt to contact Complainant regarding the performance of the corrective work. After the deadline in the directive expired, Investigator Gunstra was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

The Registrar issued a Notice of Hearing, setting a hearing on October 3, 2017. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record.

The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

The hearing was then continued to October 18, 2017, the order granting continuance was mailed to Respondent at it address of record.

A hearing was held on October 18, 2017. Complainant testified on her own behalf and submitted two exhibits.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Gunstra testified that because Respondent completely reinstalled the windows in February 2016, the Registrar had jurisdiction over the attempted repairs.

Complainant testified that she first contacted Respondent regarding the issues days after the windows were initially installed. Complainant indicated that Respondent initially determined that it had used screws that were too short to hold the windows securely in the openings, but after the short screws were replaced with longer screws, the issues kept surfacing. After Respondent replaced the windows entirely in February 2016, the issues continued. Complainant acknowledged that one window showed obvious signs of water damage. Complainant stated that the one window is more exposed to the rain and wind during the monsoon season, but all the windows are demonstrating similar problems.

Administrative notice is taken of Respondent’s prior License record on October 18, 2017. Such prior License record reflects that Respondent’s License No. 271058 was first issued on March 14, 2011, and was voluntarily cancelled on August 31, 2017. Such prior License record also reflects that there were two open complaints and no prior complaints against Respondent’s license. Such prior License record also reflects that Respondent’s License No. 271057 was first issued on March 14, 2011, and was voluntarily cancelled on August 31, 2017. Such prior License record also reflects that there were no open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not make any attempts to compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 271058 and 271057.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such 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 Respondent tenders payment of any outstanding prior civil penalty.

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, October 18, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors