ALJDEC decisions subject to certification as final

2017A-4420-NPC-ROC · Registrar of Contractors · 2017-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cookson Door Sales Of Arizona Inc,

COMPLAINANT,

v.

Elite Custom Supply LLC,

License No: 311632

RESPONDENT.

No. 2017A-4420-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2017

APPEARANCES: Diane Monachelli and Tony Tambone, Complainant’s representatives; Jason Riojas and Brian Delia, Respondent’s representatives

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

After filing a complaint against Respondent, Complainant in this matter did not establish a rational basis for finding that Respondent committed a violation of the Arizona statutes governing licensed building contractors. Therefore, it is recommended that the complaint be dismissed.

FINDINGS OF FACT

Complainant filed a complaint with the Registrar of Contractors against Respondent arguing that Respondent failed to pay for materials or services rendered in violation of the Arizona statutes governing licensed building contractors.

Complainant is a company that sells doors to building contractors. Respondent is a licensed building contractor.

Respondent ordered three doors from Complainant for a home that Respondent was building. Complainant obtained the doors from a manufacturer that it does business with. Respondent paid for and installed the doors, but the flat surfaces of the doors were wavy and unacceptable in appearance.

According to Complainant’s representative Diane Monachelli, the customer rejected the doors and ordered a different product.

According to Respondent, Complainant never dealt directly with the customer and the customer did not simply prefer another door as implied by Ms. Monachelli. Respondent’s representative Brian Delia and Jason Riojas testified that the customer rejected the doors because of the unacceptable waviness in the wood, a condition known as oil-canning. Because the manufacturer claimed that the oil-canning was within tolerance, the customer wanted to use a different manufacturer, which Respondent agreed with. Before Respondent removed the doors, the manufacturer had already refused to take them back, so Respondent removed them about two days later and simply returned them to Complainant. So at the time that the doors were removed, as far as Respondent knew, there was no reason to spare them for reimbursement from the manufacturer, yet they were defective and the customer had rejected them.

In the process of removing them, one of the doors was damaged. The manufacturer then told Complainant that it refused to accept the damaged door because it could not be re-used and because the doors had not been returned with permission and according to the manufacturer’s internal and as yet unknown return policy.

Complainant filed a complaint against Respondent because the door was damaged. While the doors had been paid for, Complainant argued that the incident constituted a failure to pay because Complainant would have to bear the cost of replacing the damaged door due to the manufacturer’s refusal to return Complainant’s payment.

Respondent argued that Complainant should have filed its complaint against the manufacturer because it provided unacceptable doors and because the damaged door could not have been re-used anyway. A photo of the door shows that the oil-canning was very noticeable, unaesthetic and unlikely to meet workmanship standards even if it had not been damaged.

The manufacturer stated in an email that its product “will have some edge waving,” so Respondent’s allegation that the manufacturer had already denied any reimbursement and had no intention of providing a workmanlike product was believable.

It was not disputed that the door was damaged when it was removed. However, there is no reason to spare unusable material. In addition, Respondent’s representative Brian Delia argued that Respondent was not given any instructions for removal or return of the doors and had no reason to know the protocols or requirements that had been set by the manufacturer. The manufacturer was dealing with the Complainant, not Respondent.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(10), which states that it is a violation for a licensee to fail to “pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor . . . .”

In this case, Complainant has not established that Respondent violated A.R.S. § 32-1154(A)(10). It was not disputed that Respondent paid for all of the doors that it received and it was not established that Respondent committed a violation when one door was damaged upon return. There being no violation established against Respondent, it must be recommended that the complaint filed by Complainant be dismissed in its entirety.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in this matter be dismissed in its entirety.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be five days from the date of certification.

Done this day, December 6, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors