ALJDEC decisions subject to certification as final

2019A-05766-CHC-ROC · Registrar of Contractors · 2021-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lynne Ann Kanatas,

COMPLAINANT,

v.

Crandell Glass & Aluminum LLC,

ROC License: ROC 271981,

RESPONDENT.

No. 2019A-05766-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 07, 2020 & March 11, 2021.

APPEARANCES: Lynne Kanatas (“Complainant”) appeared on her own behalf. Craig Kline, Esq. appeared on behalf of Crandell Glass & Aluminum LLC (“Respondent”) with Aaron Crandall, José Martinez, and Devon Grijalva as witnesses. Joh Smith appeared as a witness on behalf of the Arizona Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On April 04, 2011, the Registrar issued License No. 271981 for specialty dual CR-65 glazing contracting to Respondent. Respondent’s address of record for the license is 4349 E. Tennessee St. Tucson, AZ 85714-2136. Aaron Ross Crandell is listed on the license as the Qualifying Party/Member.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 271981, as reflected on the Registrar’s public website. Such prior license record reflects that Respondent’s license is active and currently renewed through April 30, 2021. The license has not been previously disciplined. The record reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a $21,750.00 surety bond for the license issued through State Farm Fire and Casualty Company, effective July 15, 2016.

On November 19, 2019, the Registrar received a complaint filed by Complainant alleging poor work performance on a clerestory window installation project, as well as an allegation of abandonment regarding the installation of a bathroom shower door. Specifically, Complainant alleged that Respondent left three (3) fingerprints on a piece of stained glass “trapped” between double-paned glass he had replaced. Complainant also alleged that Respondent failed to include a “fin” as a part of her shower door replacement. Attached to the complaint was a narrative from Complainant, copies of the parties’ contracts for the project, and related invoices and proof of payments.

On November 25, 2019, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on December 9, 2019, at 10:30 a.m.

On November 25, 2019, the Registrar issued a Notice of Rescheduled Jobsite Inspection letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on December 11, 2019, at 9:00 a.m.

On November 25, 2019, a Warning Letter was issued to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1124(B) for failing to include its ROC License No. on its proposals and invoices.

On November 25, 2019, a Warning Letter was issued to Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1158(A) for Respondent’s failure to include all nine (9) required minimum elements in its contracts.

On December 03, 2019, the Registrar issued a second Notice of Rescheduled Jobsite Inspection letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on December 12, 2019, at 9:00 a.m.

On December 12, 2019, Registrar investigator John Smith (“Investigator Smith”) reviewed the contract agreements between the parties, inspected the work that had been done on the projects to date, and took 6 photographs of the project. When he was finished, Investigator Smith drafted Jobsite Inspection Notes. Regarding complaint item #1, Investigator Smith noted that “It cannot be determined with certainty if these fingerprints were pre-existing, or caused by the respondent.” Investigator Smith concluded that “If the fingerprints were pre-existing, the stained glass was not properly cleaned prior to re-installation” and “If the fingerprints were not pre-existing, they were caused by the respondent.” Regarding complaint item #2, Investigator Smith substantiated Complainant’s allegation that only three (3) of four (4) fin seals had been installed on the shower door.

On December 13, 2019, Investigator Smith issued a Directive from the Registrar to Respondent because he substantiated Complainant’s workmanship allegations. Respondent was put on notice that he had until 5:00 p.m. on January 03, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On January 10, 2020, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(12); 32-1124, 32-1154(A)(3); 32-1158, and 32-1154(A)(22). Respondent was given until January 27, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On January 27, 2020, the Registrar received Respondent’s Answer. Regarding the stained glass, Respondent argued that Complainant’s stained glass was reinstalled in the exact same condition as it was extracted because the contract with Complainant expressly excluded provisions regarding stained glass cleaning. Respondent further argued that the stained glass was in such deteriorated condition that it would not have been appropriate to attempt to clean or manipulate it in any way. Regarding the shower door, Respondent argued that Complainant had accepted compensation from Respondent for the fourth fin because the requisite part was unavailable.

On February 26, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 02, 2020. Per the March 02, 2020, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108

Charge 2: A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1124(B)

Charge 3: A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158

Charge 4: A.R.S. § 32-1154(A)(22

Hearing Evidence

Complainant testified on her own behalf, called Investigator Smith as a witness, and submitted 1 exhibit into the record. Respondent called Aaron Crandall, José Martinez, and Devon Grijalva as witnesses. The Registrar’s agency file and Notice of Hearing were admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant owns residential property located at 10945 N. Pomegranate Dr. Oro Valley, AZ 85737.

On or about April 02, 2019, Complainant contacted Respondent to obtain an estimate for the replacement of 2 clerestory windows and the repair of a leaky shower enclosure.

During the subsequent consultation, Respondent noted that the decorative stained glass inserts of the windows were brittle and in a fragile state. Respondent also noted the existence of silicone sealant remnants on the window frames, stained glass, and glazing.

On June 13, 2019, Respondent provided Complainant with a $2,298.00 window replacement proposal, including the removal and reinstallation of a stained glass insert for an additional $750.00. “Final Cleaning and Protection” and “Guarantee” terms were excluded from the proposal.

On June 13, 2019, Respondent provided Complainant with a $370.00 shower door kit proposal, including a top fin, 2 side fins, and a bottom drip rail.

On June 14, 2019, Complainant tendered a check for $1,704.00 to Respondent.

On August 07, 2019, at the time scheduled for window installation, Complainant was presented with 3 invoices: (1) a bifurcated stained glass insert proposal and invoice for $750.00, (2) an invoice for the balance due for her window installation, and (3) a $173.00 invoice for the balance due on her shower project. All contracts were signed by Complainant. Respondent performed the work with gloves. During the final walk-through Complainant notified Respondent that fingerprints were visible on one of the windows. Respondent discerned that the prints were actually on the stained glass inserts and the interior or exterior of the window replacements. Respondent advised Complainant that the fingerprints were preexisting, as the prints were dry silicone and products Respondent used were wet and uncured. Because Respondent was missing the fourth and final piece needed to complete Complainant’s shower repair, the parties agreed to reschedule the completion for August 14, 2019.

Upon discovering that the fin needed to complete Complainant’s shower door repair was unavailable, Respondent credited the cost of the part and associated labor back to Complainant.

On August 30, 2019, Complainant tendered a check for $2,372.00 to Respondent.

On January 06, 2020, Respondent, through his attorney, confirmed that no corrective work had been performed on the project. Respondent requested an administrative hearing.

On January 06, 2020, after completing his investigation of this matter, Investigator Smith escalated Complaint 2019-05766 to the Registrar’s legal department with Citation recommendations.

On March 03, 2020, Investigator Smith issued a Pre-Hearing Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by on March 31, 2020, at 9:00 a.m.

On September 11, 2020, per Complainant’s request, Investigator Smith issued a Notice of Rescheduled Pre-Hearing Jobsite Inspection letter to the parties, advising that an onsite review would be conducted at the project site by on October 06, 2020, at 9:00 a.m.

On October 06, 2020, Investigator Smith conducted an inspection of the project, took 4 photographs of the project, and drafted Pre-Hearing Jobsite Inspection Notes. Respondent representatives were not permitted on the property. Investigator Smith confirmed that no corrective work had been performed on either complaint item.

In closing, Respondent argued that the underlying Citation should be dismissed and the Complainant 2019-05766 should be closed because Complainant was compensated for the missing shower fin and because the stained glass fingerprints were preexisting. Respondent further argued that because his contract with Complainant explicitly did not include stained glass cleaning, Investigator Smith was incorrect in his assertion that Respondent’s failure to remove the silicone amounted to poor workmanship. Respondent also argued that the Registrar’s Directive had improperly required him to clean the stained glass insert in direct violation of the terms of the parties’ contract. Respondent concluding by opining that its prayer for relief should also be granted because Complainant had not sustained her burden of proof in the case.

In closing, Complainant argued that she had not observed fingerprints on her stained glass until after Respondent had completed the installation of her windows. While Complainant conceded that she had been issued a refund/credit for her shower fin, she argued that Respondent had admitted to leaving the prints at issue the day of the installation and therefore should be required to remove them or pay to have the prints removed. Complainant concluded by arguing that she should not have to view the fingerprints in perpetuity, regardless of the fact that they are only visible during certain daylight hours.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Failure in any material respect to comply with this chapter.”

Ariz. Rev. Stat. § 32-1124(B) provides, in pertinent part, that “The license number appearing on any licenses held by the licensee must be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and ... other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154(A)(12).”

Ariz. Rev. Stat. § 32-1158(A) provides, in pertinent part, that a contract between a contractor and property owner amounting to more than one thousand dollars must contain the following information in writing:

The name of the contractor and the contractor's business address and license number.

The name and mailing address of the owner and the jobsite address or legal description.

The date the parties entered into the contract.

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

A description of the work to be performed under the contract.

The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

That the property owner has the right to file a written complaint with the Registrar for an alleged violation of Ariz. Rev. Stat § 32-1154(A). The contract shall contain the Registrar's telephone number, website address, and shall state that complaints must be made within the applicable time period as set forth in Ariz. Rev. Stat § 32-1155(A). The information 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.

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

In the case at bar, Complainant has not sustained her burden of proof.

While it is clear from the record that the parties had contractual agreements, which were paid in full by Complainant albeit untimely, there is insufficient evidence present to indicate that it is more likely than not Respondent is responsible for the placement and/or removal of the fingerprints visible on Complainant’s stained glass insert. The record reflects that Respondent wore gloves during the handling of the stained glass, and all products used to complete the install were wet and uncured at the time of completion. The fingerprints at issue were dry and made of silicone. Furthermore, the parties’ contract explicitly states that Respondent would not clean the stained glass prior to reinserting it. Additionally, Claimant admitted that Respondent issued her a credit for the 4th fin he was unable to secure to complete the repair of her shower door.

Because no violations of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108, have been established, Respondent cannot be held in violation of Ariz. Rev. Stat. § 32-1154(A)(22).

Although the record does establish violations of Ariz. Rev. Stat. § 32-1154(A)(12); 32-1124, and 32-1154(A)(3); 32-1158, the Registrar already disciplined Respondent for said violations by issuing Warning Letters on November 25, 2019.

Therefore, based on the substantive evidence of record, no grounds exist for the Registrar to take disciplinary action against Respondent’s license in this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that Complainant’s appeal be denied by the Registrar.

IT IS FURTHER RECOMMENDED that Complainant 2019-05766 be closed by the Registrar.

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, March 31, 2021.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors