FINACT2018A-1385-NPC-ROC-REHRG.pdf

2018A-1385-NPC-ROC-REHRG · Registrar of Contractors · 2018-10-17

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Desert Breeze Glass, LLC, Case No. 2018-1385 COMPLAINANT, Docket No. 2018A-1385-NPC-ROC-REHRG v. FINAL ADMINISTRATIVE DECISION East Valley Disaster Services Inc., AND ORDER License No. 276088, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on November 25, 2018. Dated October 16, 2018. Registrar of Contractors /s/ Nicole Sornsin Nicole Sornsin Assistant Director, Legal and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail October 16, 2018 to: Respondent East Valley Disaster Services Inc 257 W Broadway Rd Mesa, AZ 85210 Complainant Desert Breeze Glass LLC 916 E Baseline Rd Ste 104 Mesa, AZ 85204 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge

Case No. 2018-1385 / AN

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 10.1.2018 ROC LEGAL IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Desert Breeze Glass LLC, No. 2018A-1385-NPC-ROC-REHRG COMPLAINANT ADMINISTRATIVE LAW JUDGE v. DECISION

East Valley Disaster Services Inc., License No: 276088 RESPONDENT

HEARING: September 11, 2018 APPEARANCES: Cathryn Curcio, Owner and President, appeared on behalf of Complainant Desert Breeze Glass LLC. Stuart MacLay, Qualifying Party, appeared on behalf of Respondent East Valley Disaster Services Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. East Valley Disaster Services, Inc. (Respondent) is the holder of License Nos. 276088, 153321, 097838 issued by the Registrar of Contractors (Registrar). 2. On or about March 26, 2018, Desert Breeze Glass LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $3730.25 for the installation of windows. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). After an initial hearing regarding the complaint, the Registrar rejected the recommended decision of the Administrative Law Judge and remanded the matter back to the Office of Administrative Hearings for a rehearing. At the rehearing, administrative notice was taken of the prior proceeding in this matter and the parties were allowed to present additional testimony and evidence. 4. Ms. Curcio previously testified that the total due to Complainant was $3730.25. Ms. Curcio stated that Complainant was hired to install windows in two properties side by side that had been damaged in a fire. Ms. Curcio acknowledged there were gaps around the windows after the initial installation due to the fact that the rough opening in the Arizona room was not square and the windows had to fit inside the opening.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 10.1.2018 ROC LEGAL

Ms. Curcio stated that the windows installed were identical in size to the ones that were removed and that after the trim and caulk was completed, there were no issues with the gaps. 5. Marvin MacLay, Project Manager, previously testified that the homeowner saw the windows after they had been installed and was concerned with the gaps around the windows before the trim and caulk had been completed and that he wanted to put the project on hold until he could meet with Complainant. Mr. MacLay indicated that Complainant would never meet with the homeowner. Mr. MacLay stated that eventually Respondent had to get someone else to look at the project and they ordered new windows for the project. Mr. MacLay posited that if Complainant would have met with the homeowner and made him feel better about the project, they could have gone forward. Mr. MacLay testified that Respondent had told Complainant to put the project on hold, but it came out and completed the project anyway. 6. Neither party provided any specific dates of the events they described or submitted communications exchanged between the parties. The photographs submitted of the windows prior to the finish phase demonstrate gaps that were seemingly large in areas, but did not demonstrate any apparent flaws after the trim and caulk. 7. Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, [f]ailure by a licensee or agent or official of a licensee 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 when the licensee has the capacity to pay or, if the licensee lacks the capacity to RECEIVED 10.1.2018 ROC LEGAL

pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. 4. The evidence established that Respondent owed a total of $3730.25 for the windows. 5. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed. 6. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(10) by failing to pay Complainant $3730.25 for services or materials rendered in connection with Respondent’s contracting business. 7. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(10), grounds exist to impose discipline against Respondent’s license RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar suspend East Valley Disaster Services Inc.’s License No: 276088 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $3730.25 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3730.25 in certified funds, the Registrar may close the Complaint in Case No. 2018-1385. 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 40 days from the date of the certification. Done this day, October 1, 2018

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors