ALJDEC decisions subject to certification as final

2017A-4989-CHC-ROC · Registrar of Contractors · 2018-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Larry and Gayle Earle,

COMPLAINANTS,

v.

Anthony S. Cullotta dba,

Illumination Window & Door Company,

License No:

277381

RESPONDENT.

No. 2017A-4989-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 2, 2018

APPEARANCES: Complainants Larry and Gayle Earle appeared on behalf of themselves. Mark Hanson, Esq. appeared on behalf of Respondent Anthony S. Cullota dba, Illumination Window & Door Company.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On December 8, 2017, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 2, 2018, at the Office of Administrative Hearings.

Respondent Anthony S. Cullota dba, Illumination Window & Door Company, (“Illumination”), holds license number 277381 issued by the Registrar.

Illumination’s qualifying party is Anthony S. Cullota.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Through the Citation, the Registrar alleges that Ilumination may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(12) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Illumination’s license.

On or about May 15, 2017, Complainants Larry and Gayle Earle and Illumination entered into an agreement wherein Illumination would install windows and doors in Complainants’ home. The contract provides on the seventh page, “Include Trim Metal Frame Even With Drywall Interior..”

On or about July 19, 2017, Illumination began work on the home.

On or about July 21, 2017, Illumination completed the work.

On or about October 2, 2017, the Registrar received a complaint from the Earles alleging poor workmanship on the part of Illumination.

Illumination did not provide the Earles with a proposal or contract that advised the Earles of their right to file a complaint with the Registrar against Illumination for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B).

On October 18, 2017, Registrar Investigator Steve Nelsen conducted a job-site inspection. Investigator Nelsen substantiated one complaint item. Investigator Nelsen’s job site inspection notes provide, in relevant part, as follows:

Complaint Item 3: All windows are not supported properly along the window sill. These are very large windows with four screws holding them in place.

Investigator’s Observation: The windows shown do not appear to be installed correctly. There was no blocking present and the screws did not follow the AAMA recommendations – see pics. I did meet with the manufacturer on site on 11/3/17 and it was confirmed that the windows were not installed correctly. The do not site positively on the base of the old frame and the screw placement is not correct. See pic 2 on 11/3/17 inspection.

Governing Rule: Workmanship Rule: ARS 32-1154A3

On or about November 3, 2017, Investigator Nelsen conducted a second job site inspection. The manufacturer of the windows was present and confirmed with Investigator Nelsen that the windows were not installed correctly.

On November 6, 2017, Investigator Nelsen issued a Directive to Illumination.

On November 15, 2017, Investigator Nelsen sent an electronic mail message (“email”) to Anthony Cullota which provides, in relevant part, as follows:

Good Morning Anthony-

I received additional correspondence from the Homeowner that your contract states, “Include trim metal frame even with drywall interior, windows with Z bar Retro fin install.” Based off this information, it appears that the installed windows were not ordered with the correct sizing. I am rescinding the Directive from the Registrar dated 11/6/2017 and issuing a new Directive from the Registrar ordering you to install the windows as per contract according to AAMA guidelines. If you have additional questions, please let me now.

15. Investigator Nelsen had observed that the trim metal frame was not even

with the Drywall Interior.

16. On November 15, 2017, the Registrar issued new Directive to

Illumination. The November 15, 2017 Directive provides, in relevant part, as follows:

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

1. Install 14 windows and 2 doors according to contract and AAA guidelines as per manufacturer.

ANY PREVIOUS DIRECTIVES ARE RESCINDED

17. The deadline for compliance under the Directive was December 4, 2017.

Illumination performed no work on the Earles’ home during the timeframe for compliance under the Directive because Illumination believed that it had installed the windows and doors in compliance with the contract and the AAMA guidelines. However, Illumination offered the Earles $5,000 to have another contractor perform the work. The Earles rejected the offer believing that it was insufficient to cover the repair costs.

18. At hearing, The Earles contended that Illumination performed poor when it

installed the windows in their home. The Earles contended that the windows were not properly supported and the windows were not cut flush with the drywall. The Earles argued that the windows were not the correct size.

19. Illumination contended that the windows and doors were installed in

compliance with the contract and AAMA. Illumination argued that under AAMA, an installer is not required to block a window. Illumination contended that under AAMA, an installer is required to install a retrofit window making sure to level block it as necessary.

20. Administrative notice is taken of Respondent’s prior License record on February 22, 2018. Such prior License record reflects that Respondent’s License No. 277381 was first issued on March 11, 2012, and is current. Such prior License record also reflects that there were no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Ariz. Rev. Stat. section 32-1154(A) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the Registrar.

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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 which 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. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

9. The preponderance of the evidence shows that Illumination did not trim the metal frame even with the drywall interior. The preponderance of the evidence shows that Illumination’s work did comply with the contract and failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

10. The preponderance of the evidence shows that Illumination did not comply with the Directive, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

11. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section § 32-1158(B) because Respondent did not provide Complainant with a contract that advised Complainants of their right to file a complaint with the Registrar against Respondent, for an alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Anthony S. Cullotta dba, Illumination Window & Door Company, License No: 277381 for a period of one (1) day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 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 Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of A.R.S. § 32-1158(B). If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s licenses be suspended for three days.

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 is forty days after the date of that certification

Done this day, February 22, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors