ALJDEC decisions subject to certification as final
2018A-2461-CHC-ROC · Registrar of Contractors · 2018-09-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Carrie Lundell,
COMPLAINANT,
v.
Frameless Glass LLC,
License No:
283819
RESPONDENT.
No. 2018A-2461-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 6, 2018, 1:00 P.M.
APPEARANCES: Gregory Williams, Esq., appeared on behalf of Complainant; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Frameless Glass, LLC (Respondent), is the holder of License Number 283819 issued by the Registrar of Contractors (Registrar).
2. On or about June 1, 2018, Carrie Lundell (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment in connection with the installation of windows and doors by Respondent at a residence in Gilbert, Arizona.
3. After an inspection performed by the Registrar on June 19, 2018, the Registrar issued a Directive, dated June 19, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by July 4, 2018, as follows:
Complaint Item 1: We stopped hearing from Ron. He has not installed the windows.
Directive: Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.
Complaint Item 2: His work was shody. Moisture barrier was not under the window frame and some window channels installed are not per manufacturer.
Directive: Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.
4. After been informed that the Respondent did not complete corrective work, the Registrar then issued a Citation to Respondent, dated July 5, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards).
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, dated August 1, 2018, that set a hearing for September 6, 2018, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about August 1, 2018, at its address of record.
6. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.
7. A hearing was held on September 6, 2018, at 1:00 P.M. Complainant Carrie Lundell testified on her own behalf and presented the testimony of Mason Lundell and Jim Johnson. Steve Lawton (“Investigator”) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 33.
8. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing on its own behalf or through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically nor did it request that the hearing be continued.
9. The Investigator testified that Matt Gunstra, the investigator of this Complaint, was no longer with the Registrar. He further testified as to Mr. Gunstra’s inspection of the project, and the Directive issued by the Registrar as a result of Mr. Gunstra’s observations from his inspection.
10. Complainant Carrie Lundell testified that she paid Respondent a $30,000.00 deposit in January 2018 to order windows and doors and that Respondent returned to ask for an additional $12,000.00, which she paid. She further testified she contacted the manufacturer directly in April 2018 and found out that Respondent had just recently ordered the windows. She further stated that Respondent put in frames in fixed windows but that they were installed incorrectly. She stated that windows and doors were not delivered and that she ultimately had to hire another company to complete the project.
11. Morgan Lundell, husband of Complainant, testified that he emailed and texted Respondent to perform the contract and that he ultimately went to Respondent’s office and was told that the company had been sold and that there was no money for the job. He further testified that what little work Respondent performed was deficient because no seal pans were installed for draining nor were end dams to subsills installed.
12. Jim Johnson, a contractor hired by Complainant to remedy Respondent’s work, testified that he had 42 years of experience in glass and glazing. He stated he inspected Respondent’s work and found very few subsills had been installed by Respondent under the windows and for those he found, he stated they were not installed properly. He further testified that the metals used in frames were not compatible with each other and that it looked as if Respondent had used scrap. He stated that Respondent did not follow the manufacturer’s specifications and he further described the project as a disaster.
. 13. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website. On August 22, 2018, Respondent’s License Number 283819 was revoked. The revoked status of Respondent’s license is considered as a factor in aggravation of any determination of discipline.
CONCLUSIONS OF LAW
1. 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.
2. The revoked status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
3. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
4. 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).
5. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
6. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
...
3. Violation of any rule adopted by the registrar.
...
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.
7. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”
8. Complainant has presented sufficient evidence to demonstrate that Respondent has refused to perform work and that with respect to the limited work that Respondent did perform, Complainant has established that such work was not performed in a professional and workmanlike manner. No evidence was presented to rebut Complainant’s evidence or to support a legal excuse for refusal to perform work or to support a valid justification for the failure to perform corrective work.
9. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Frameless Glass, LLC’s, License Number 283819 is revoked.
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 five days from the date of the certification.
Done this day, September 26, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors