ALJDEC decisions subject to certification as final

2017A-778-CHC-ROC · Registrar of Contractors · 2017-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donna S .Leipold,

COMPLAINANT,

v.

P S G LLC , License No: 174953,

RESPONDENT.

No. 2017A-778-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 7, 2017 and August 22, 2017

APPEARANCES: Donna S. Leipold (Complainant) appeared on her own behalf. P S G LLC (Respondent) was represented by Nicholas Jacque, its qualifying party and authorized representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 3924 North Boulder View, Scottsdale, Arizona 85262.

Respondent holds Arizona Contractor’s License No: 174953. The license is current with some past suspensions for lack of bond. The license history shows one other complaint that was settled or withdrawn.

On February 9, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when installing an exterior door.

The Registrar assigned investigator Matt Gunstra investigate the complaint. Gunstra testified that he arranged to perform an inspection on March 3, 2017, and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Springer indicated that at the time of an inspection, he substantiated three of Complainant’s allegations; specifically, that the French door swing did not operate correctly, the French door was not square and the door leaked at the top.

On March 13 2017, Gunstra sent Respondent a Directive from the Registrar. The Directive stated in pertinent part 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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 March 28, 2017.

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

Complaint Item 1: French door swing is incorrect

-Respondent shall complete project per contract, written change orders and verbal agreements.

Complaint Item 2: Door was not installed square

-Sidelight does not function correctly and door rubs the jamb and threshold. Door should be installed per manufacturer installation instructions and ROC workmanship standards.

Complaint Item 5: French door leaks badly from top and from glass unit

-Door shall be installed per manufacturer installation instructions and should not allow excessive water entry. Any applicable warranty should be serviced by Respondent as it relates to manufacturing issues.

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

Respondent never asked that the Directive period be extended, despite acknowledging that a replacement door would take longer than fifteen days to obtain and stain. Jacque said he understood that Gunstra simply told him to do the best he could.

The record reflected through the testimony of the Carol Sutter, office manager of Huttig Building Products (Huttig), manufacturer of the door, that Respondent placed the order for a replacement door on March 20, 2007, that the door was produced on March 24, 2017 and was available for pick-up on March 27, 2017. Jacque noted that he did not pick up the door at that time because he was waiting for his stainer to apply stain to the door, which took two weeks. The record reflected that Respondent did not pick up the replacement door from Huttig until May 4, 2017.

After the time period for compliance with the Directive, Complainant informed Gunstra that Respondent had performed no corrective work and had not contacted her. Gunstra asked Complainant to memorialize the lack of corrective work in writing, which Complainant did via letter dated April 1, 2017. Gunstra forwarded the matter to the Registrar’s legal department.

On April 17, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.”

On April 20, 2017, Jacque sent Complainant a text offering to replace the door in question. Jacque indicated he had attempted to call Complainant before then, but received no response, an allegation Complainant disputes. Complainant spoke to Gunstra about this offer, but elected to proceed with an administrative hearing, which was already scheduled.

Hearing was convened at the Office of Administrative Hearings (OAH) on June 7, 2017. At that time, the parties scheduled a time for corrective work to be done in hopes of resolving the matter. The settlement fell through for reasons not relevant to this proceeding.

Gunstra testified consistently with the facts detailed above as did Complainant and Jacque. Jacque maintained that he wanted to do corrective work but had been denied the right to do so. He noted that he was frustrated and had attempted to satisfy Complainant, but did not know he could seek an extension of the Directive period.

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. § 32-115.

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).

Undisputed credible testimony established Respondent performed substandard installation of the French door, resulting in a French door that failed to swing properly, was not square and leaked at the top. Thus, Complainant established Respondent’s work on French door 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.

An A.R.S. § 32-1154(A)(22) violation is, warranted for Respondent’s failure replace the door within the Directive period. The delay stemming from the stainer was in Respondent’s control and the evidence reflected that Huttig made the door available to Respondent during the Directive period, but Respondent failed to pick up the door for several weeks after it was stained and ready for installation.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. License No: 174953 for a period of five (5) days.

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, August 25, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors