ALJDEC decisions subject to certification as final

2017A-3324-ROC · Registrar of Contractors · 2017-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Shapiro,

COMPLAINANT,

v.

Secon LLC,

License No: 260035

RESPONDENT.

No. 2017A-3324-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 15, 2017 at 1:00 p.m.

APPEARANCES: Michael Shapiro (“Complainant”); Paula Shelby (“Ms. Selby” Witness1 for Complainant); Jennifer Kotz (“Ms. Kotz” Witness2 for Complainant); Jerry Ownby (“Mr. Ownby” representative for Respondent Secon LLC); Barney Hernandez (“Mr. Hernandez” representative for Respondent Secon LLC); and Steve Klein (“Investigator Klein” for the Registrar of Contractors “ROC or “Registrar”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions of A.A.C. R4-9-108, and thereby of A.R.S. §§ 32-1154(A)(3) workmanship issues and 32-1154(A)(22), as alleged by Complainant and as cited by the Registrar. Based on the testimony and evidence presented at hearing, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

Complainant, Michael Shapiro, is the owner/occupant of a residence located at 7831 North 20th Glen, Phoenix, Arizona 85021.

Respondent, Secon LLC, is the holder of Arizona Contractor License No. B-1.260035-C issued by the Registrar. Respondent’s License is current on as of the date of this hearing.

On or about June 27, 2017, Complainant submitted his Complaint with the Registrar alleging against Respondent two (2) complained of items to include: (1) 2nd floor patio doors and windows are nonfunctional as installed. No screens can be installed; and (2) 3rd floor patio doors and windows are nonfunctional as installed. No screens can be installed.

Complainant stated in its Complaint that he purchased a newly constructed residential brownstone condominium on or about March 10, 2017, from RLS Capital, Inc. Respondent is the contractor responsible for hiring and payment to the subcontractor, namely Cascade Window, who installed the patio doors on both levels of Complainant’s unit.

On July 25, 2017, Investigator Klein performed a Jobsite Inspection of the two (2) complained of items. Investigator Klein findings were as follows:

Complainant Item 1: 2nd floor patio doors and windows are nonfunctional as installed. No screens can be installed.

Investigator’s Observation: Verified screens are missing.

Governing Rule:

Violation of Any Rule Adopted by the Registrar 32-1154.A-3 Namely Rule R4-9-108.

Abandonment, 32-1154(A)(1).

Complaint Item 2: 3rd floor patio doors and windows are nonfunctional as installed. No screens can be installed.

Investigator’s Observation: Verified screens are missing.

Governing Rule:

Violation of Any Rule Adopted by the Registrar 32-1154.A-3 Namely Rule R4-9-108.

Abandonment, 32-1154(A)(1).

Following his inspection, a Directive was issued on July 26, 2017, directing Respondent to remedy the following violations by the appropriate means: “Respondent shall install all sliding glass door screens per original contract agreement and manufacturers installation instructions.” Respondent was required to provide written proof of satisfactory compliance with the Directive prior to 5:00 p.m. on August 7, 2017.

On August 8, 2017, Investigator Klein issued a Directive Compliance that “Complainant states, directive wasn’t addressed by the Respondent, ” and a Citation issued citing the following: Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. §32-1154(A)(3); and Charge 2: A violation of A.R.S. 32-1154(A)(22) “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 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.”

Respondent submitted its Written Answer to the Citation and Complaint on or about August 23, 2017. Respondent stated that it was determined that the sliding glass doors were installed incorrectly by the window installer, and that they have been in contact with Cascade Windows formally known as Paramount Windows with no luck on correcting the problem. Respondent further stated in its answer that Cascade has only provided a cost on what it would take to correct the problem.

A Notice of Hearing was sent to the parties that a hearing is scheduled on the charges made in the Citation and Complaint to be held before the Office of Administrative Hearings.

HEARING EVIDENCE

Complainant testified he is unable to use the patio doors, and he continues to make available to Respondent the opportunity to repair and make the patio doors functional so that the screens can be installed.

Respondent stated the patio doors were installed by a subcontractor, namely Cascade Window, formerly known as Paramount Windows.

Investigator Klein testified he was assigned to investigate Complainant’s Complaint. He provided a narrative report as to his involvement in the case and read from his jobsite inspection notes. He stated that during his inspection of the new built a certificate of occupancy was issued, and that there is no safety issue.

Complainant testified that the builders warranty should be in effect.

Complainant further testified that the City of Phoenix advised him the patio doors are not a code violation but rather a workmanship issue.

Barney Hernandez testified on behalf of Respondent and stated he is a project manager for Secon LLC. He stated that Respondent did not have a contract with the supplier and that Paramount Windows now known as Cascade Windows was hired to do the install of the patio doors.

He further testified that Cascade Windows stated that it will cost $2,200.00 to remedy the issue. He stated that Cascade promised to return with the screens, and that the reason they have not paid Cascade additional funds to remedy is because they should not have to pay twice for the window installer to remedy since the installer was paid to properly install the doors and screens.

Paula Selby testified that she is the realtor who worked with the buyer to purchasing the new built. She stated Complainant viewed the home on March 10, 2017, and that a 15-day inspection was performed. Two weeks later, they noticed the screens did not fit so the issue was disclosed prior to closing and buyer was told that special screens were on order.

Complainant argues he is unable to open the doors to let fresh air in since there are no screens and that he should not have to pay out an additional $2,200.00 to remedy after having paid to purchase the unit with functional doors and screens. He asserts that the facts presented support a workmanship issue and that the complained of issue should be resolved by the Respondent.

Respondent argues they should not have to pay twice for the installation and have been working to remedy the issue with the initial installer. Respondent also stated they are in the process of filing a complaint against the subcontractor who they hired to perform the installation of the doors and screens.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Credible testimony established Respondent is liable to remedy the patio doors and have the window screens properly installed as they are the party responsible for hiring the subcontractor and the Complainant should not have to wait out obtaining a remedy while Respondent pursues its claim against its subcontractor. Thus, Complainant established the items specified to be remedied in the Directive to be in violation of workmanship standards, specifically A.A.C. R4-9-108 and thereby of A.R.S. § 32-1154(A)(3).

An A.R.S. § 32-1154(A)(22) violation is substantiated since evidence and testimony provided that Respondent failed to take appropriate remedial action. Respondent is in the best positon to make its claims against their subcontractor and not the Complainant, and should not be cause for delay in remedying.

The preponderance of the evidence established workmanship issues against Respondent, specifically its failure to take appropriate corrective action upon the issuance of the Registrar’s Directive. Respondent’s argument that they should not have to pay twice for work to be performed is not valid justification to remedy the complained of workmanship issue.

The Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

RECOMMENDed order

Based on the foregoing, it is recommended that on the effective date of the Order, Respondent’s License No.: B-1.260035-C shall be suspended for one-half (1/2) day and pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E).

The failure by Respondent 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 Respondent’s contractor’s licenses 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 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 forty days from the date of the certification.

Done this day, December 4, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors