ALJDEC decisions subject to certification as final

2018A-2820-CHC-ROC · Registrar of Contractors · 2018-11-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 24, 2018, 1:00 P.M. APPEARANCES: Complainant Terry Rathbun appeared on behalf of himself; Lowell Gulley, President, appeared on behalf of Respondent San Jose Contracting, Inc., dba Sunscape Windows & Doors ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. San Jose Contracting, Inc., dba Sunscape Windows & Doors (Respondent), is the holder of License Numbers 151644 and 276228 issued by the Registrar of Contractors (Registrar). 2. On or about June 20, 2018, Terry Lee Rathbun (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with window installation by Respondent at a residence in Tucson, Arizona (“project”). The Complaint reflected a contract amount of $6,736.00. 3. The Registrar performed an inspection of the project on July 11, 2018. Thereafter, the Registrar issued a Directive, dated July 17, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by August 8, 2018, as follows: 1. "Cracked window mullion during installation." This was described by the complainant to be a cracked window frame at window #2, and breaks in the interlock flange at window #5. 2. "Windows and frames are dirty." This was described by the complainant to be uneven paint and caulking lines on the windows. Additionally the interior of window #4 has caulk residue smudged on the window frame. The exterior of window #5 has some type of grease residue. 3. "Window has sag at head." This was found to be present at window#4 and window #5. Note: Cutting of the window frame is not an acceptable repair. 4. "Screw holes with no screws." This was found to be present at window #1 and window #5 5. "No Sealant at screw hole cap." This was described by the complainant to be missing screw hole caps. 6. "Windows not properly sized for openings." This was found to be present at window #5. Note: Cutting of the window frame is not an acceptable repair. 7. "Latches do not line up." 8. "Tracks not properly installed and dirty." This was described by the complainant to be tracks that are lifting and warping causing the windows to not operate properly. 9. "Some windows harder to open than others." 10. "Anchors not spaced evenly or aesthetically." Note: as mentioned, all screws should have proper shims. 11. "Caulking is pulling away / falling due to improper installation." Caulking at windows #1, 4, and 6 was observed to be bulging with air pockets behind, and/or have voids in the surface. 12. "Some screens loose / sagging." 13. "Told by factory rep (Cody) do not put screws in sill. Screws installed in sills." 14. "Job not completed and contractor refuses to communicate on blind replacement" This was described to be a damaged/missing blind on the dining room window. 4. After the Registrar conducted a compliance inspection on August 15, 2018, at which time it observed that all corrective work had not been performed or completed, the Registrar issued a Citation to Respondent, dated August 16, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards); 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)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract; d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for October 24, 2018, at 1:00 P.M. 6. At the October 24, 2018, hearing, Complainant Terry Rathbun testified on his own behalf and presented the testimony of Wally Johnson and Tom Crohurst. Respondent presented the testimony of Lowell Gulley, President, and Michael Cummings, superintendent. John Smith, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 -`19 and Respondent’s submissions to the Registrar.[1] 7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he conducted a pre-hearing inspection on October 23, 2018, but noted that Respondent had not returned to the project since the compliance inspection. He stated that at the compliance inspection, he confirmed that Directive items 1, 9, 11, 12, and 14 had been corrected by Respondent. 8. The Investigator stated that he had contacted the Pima County Building Department and discovered that no building permit had been obtained for the project, which he stated was required for window installations. He stated that a permit was ultimately obtained, but only for eight of the nine windows installed. He noted that even for those eight windows, they did not pass final inspection by the Pima County Building Department. (Complainant’s Exhibit 14). He further testified that at the initial inspection, Respondent agreed to repair the outstanding items and to also provide manufacturer’s installation instructions with respect to Directive item 13, which he stated Respondent did not provide until sometime later. He stated that once he received the manufacturer’s instructions, he determined that screws should have placed on the inner track rather than the outer track of the windows and that shims were required behind screws if a gap was greater than 1/16 inch. He stated that Respondent told him that shims were not inserted because the gaps were 3/16 inch. He stated he confirmed with the manufacturer that under normal circumstances, screws on the sill would not be necessary. 9. Complainant Terry Rathbun testified as to various issues with the project and that even before contacting the Registrar, Respondent had to remove seven of the nine windows and reinstalled them. He further submitted photographs of the alleged deficiencies. (Complainant’s Exhibits 15- 16). 10. Tom Crohurst, a construction consultant, testified on behalf of Complainant as to caulking issues he observed, that he saw no insulation around frames, and to his belief of the potential for water infiltration. He stated that on the inside of the windows, there was sagging and delamination. 11. Wally Johnson, affiliated with a water proofing construction company, testified on behalf of Complainant that Respondent was not using backer rods. He stated that at window number 5, he did not believe that caulking was properly applied. He further stated that he believed Respondent had improperly used water on its caulking. 12. Lowell Gulley, President of Respondent, testified on behalf of Respondent that Respondent last returned to the project on August 7, 2018, to perform corrective work. He stated that he believed that window number was the only item left that merits attention and he indicated that he had already purchased a new window to replace it. He further testified that he would submit additional exhibits comprising permit documents, additional window specifications, and Respondent’s new contract form. The Tribunal has yet receive any such documents at this point in time.[2] 13. Mr. Gulley further testified that he obtained a building permit for eight of the windows and omitted the kitchen window number 6 that led out to the carport or garage, (Complainant’s Exhibit 12). He noted that the building permit reflected that Complainant needed a permit for an earlier conversion of his carport into a garage and that the pre-existing window from living space into the converted garage was non-compliant with building codes. (Complainant’s Exhibit 12). 14. Mike Cummings, superintendent of Respondent, testified on behalf of Respondent that he had not checked screw placement. He stated that he was called about a window out of plumb and found others out of plum up to 3/8th of an inch for which he said he ended up cutting the drywall. He further stated there was no functionality issues and that he had placed shims wherever he thought they were necessary. 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 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. 3. 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). 4. 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:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

3. Violation of any rule adopted by the registrar. …

12. Failure in any material respect to comply with this chapter. …

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.….

5. 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.” 6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:

4. The estimated date of completion of all work to be performed under the contract. …

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative…. 7. A.R.S. § 32-1154(A)(2). Complainant has failed to present sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2), the departure from or disregard of plans or specifications or any building codes. The evidence presented established that Respondent proceeded with the project without a building permit but ultimately obtained a permit for the installation of eight of the nine windows. The remaining window replaced a pre-existing window apparently installed by another contractor that was already not in compliance with the building code because it led out to a garage. It was not clear from the evidence whether a permit could not be obtained for the last window because the garage had previously been converted without a permit or whether the pre-existing window was installed by another contractor after the garage had been converted without a permit. The building permit merely states that homeowner was to correct the non- compliant window as part of the carport conversion building permit submission. (Complainant’s Exhibit 12). In either case, this building code violation was completely unrelated to Respondent’s work which merely involved the replacement of that window. The Tribunal finds that Respondent should not be responsible or be disciplined for Complainant’s or any previous owner’s unpermitted garage conversion. 8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Respondent did not dispute the existence of Directive items 2, 3, 4, 5, 6, 7, and 8 and in fact agreed to correct the items. 9. The dispute in large part involved Directive items 10 and 13 regarding the placement of screws and shims and whether they were in compliance with the manufacturer’s (Window Mart) specifications or installation instructions. With regard to Directive item 10, the manufacturer’s instructions state to use shims if necessary to ensure a solid and level sill and to insert shims where necessary on jambs and head to secure window. (Complainant’s Exhibit 5). The instructions further state to shim at anchors where space is greater than 1/16th inch. Respondent contended it used shims when it believed it was appropriate, but acknowledged it had not used shims at the anchors with gaps up to 3/16th inch, which would not be in conformance with manufacturer’s specifications. Thus, the Tribunal finds Directive item 10 to be a violation. 10. With regard to Directive item 13, Window Mart’s General Manager indicated that “screw placement on the sill is at the discretion of the contractor….” (Complainant’s Exhibit 8). However, it is noted that the windows failed the final inspection conducted by the Pima County Building Department on September 25, 2018, in some manner relating to the screws. (Complainant’s Exhibit 14). Therefore, the Tribunal finds that Directive item 13 to be a violation to the extent the screws were the cause of the failure to pass the final inspection conducted by the Pima County Building Department. 11. The Tribunal acknowledges that the General Manager of the manufacturer concluded that, based on the information he was presented, “the contractor properly used screws for the installation of these units and that the contractor was in compliance with Window Mart’s “Horizontal Slider : Installation & Instructions….” (Complainant’s Exhibit 8). However, it was acknowledged that this manufacturer representative never visited the project to inspect the windows and that he was basing his opinion on what Respondent told and sent him, and to a lesser degree, his conversation with the Investigator. However, no evidence was presented to show what was presented or said to the representative to establish a foundation or basis for his opinion. For that reason, the Tribunal does not find the opinion to be determinative or persuasive. 12. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with Chapter 10 of Title 32 of the Arizona Revised Statutes. The evidence presented showed that Respondent had violated A.R.S. § 32-1158(A) because the contract between the parties was in excess of $1,000.00 and did not include an estimated completion date or a notice of the owner’s right to file a complaint with the Registrar. (Complainant’s Exhibit 1). 13. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. The evidence reflected that Respondent made efforts to correct the Directive items. However, Respondent provided no evidence of a valid justification for not completing all of the Directive items. Respondent’s contention that Complainant was a difficult, unreasonable, and contentious customer is not a valid justification without evidence that Complainant in fact prevented corrective work from proceeding. 14. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), 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, San Jose Contracting, Inc.’s, License Numbers 151644 and 276228 are suspended for two days. 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, November 25, 2018.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s file. [2] The Tribunal instead received post-hearing document submissions of Respondent reflecting unsuccessful efforts to resolve this matter with Complainant. Those documents regarding settlement efforts are not admitted into evidence and have no bearing on any issues.

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