ALJDEC decisions subject to certification as final

2021A-03650-CHC-ROC · Registrar of Contractors · 2021-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Randy Christopher Thompson ,

COMPLAINANT,

v.

Desert Breeze Glass LLC,

License No. ROC 287915,

RESPONDENT.

No. 2021A-03650-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 09, 2021 at 9:00 AM.

APPEARANCES: Randy Thompson (“Complainant”) appeared on his own behalf. Cathryn Curio appeared on behalf of Desert Breeze Glass LLC (“Respondent”). Steven Avila appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). William Whitten and Jeremy Davis observed.

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 October 07, 2013, the Registrar issued License No. 287915 for Specialty Dual CR-65 contracting to Respondent. Respondent’s address of record for the license is 916 E. Baseline Rd., Ste. 104 Mesa, AZ 85204. Cathryn Mary Curcio is listed as the Qualifying Party and Member on the license.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 287915, as reflected on the Registrar’s public website. Such prior license record reflects that Respondent’s license is active and currently renewed through October 31, 2023. The license is in good standing and 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 $6,750.00 surety bond for the license issued through RLI Insurance Company, effective October 01, 2013.

On or about August 02, 2021, the Registrar received Complaint 2021-03650 filed by Complainant alleging poor work performance on a residential window replacement project. Attached to the complaint were copies of a quote, correspondence from Respondent regarding a down payment for the work, a receipt, and proof of payment.

On August 02, 2021, 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 August 19, 2021, at 9:00 a.m.

On August 19, 2021, Registrar investigator Steven Avila (“Investigator Avila”) reviewed the contract agreements between the parties, inspected the work that had been done on the projects to date, and took 18 photographs of the project. When he was finished, Investigator Avila drafted Jobsite Inspection Notes. Ultimately, Investigator Avila substantiated 4 of Complainant’s 6 complaint items. Specifically, Investigator Avila found that complaint items 1-4 were in need of remediation by Respondent.

On August 31, 2021, Investigator Avila issued a Written Directive from the Registrar (“Directive”) to Respondent based on the workmanship allegations he substantiated during his jobsite inspection. Respondent was put on notice that he had until 5:00 p.m. on September 15, 2021, 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 September 24, 2021, Investigator Avila issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site on September 30, 2021, at 9:00 a.m.

On September 30, 2021, Investigator Avila inspected the workmanship complaint item previously identified for remediation and took 8 photographs of the project.

Complainant did not permit trades/subcontractors Respondent brought to the inspection to access the project, but did permit Respondent on the property.

When he was finished, Investigator Avila drafted Compliance Jobsite Inspection Notes. Ultimately, Investigator Avila determined that complaint item 4 was moot, as it had been satisfactorily repaired, but concluded that complaint items 1-3 remained at issue and had not been satisfactorily remediated by Respondent.

On October 01, 2021, Investigator Avila escalated Complaint 2021-03650 to the Registrar’s legal department with a Citation Recommendation.

On October 07, 2021, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until October 22, 2021, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On October 12, 2021, the Registrar received Respondent’s Answer. Respondent attached a timeline of events and correspondence between the parties. In the Answer, Respondent argued that repairs for trim, stucco, and drywall exceeded the scope of its contract with Complainant, and that all attempts to remediate the project were met with denials of access to the project cite by Complainant. Respondent asked the Registrar to dismiss the complaint under Ariz. Rev. Stat. § 32-1155(D).

On October 18, 2021, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on December 09, 2021. Per the November 09, 2021, 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)(22)

Hearing Evidence

Complainant called Investigator Avila as a witness and testified on his own behalf. Cathryn Curio testified on behalf of Respondent. The Registrar’s agency file was admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Complainant owns residential property located at 1102 W. Peoria Ae. Unit #11, Phoenix, AZ 85029.

On or about November 25, 2020, the parties entered into a contract agreement whereby Complainant agreed to tender $8,508.90.00 to Respondent for the fabrication and installation of 6 dual pane windows and 2 dual pane doors. Complainant did not purchase new trim for any windows or doors, opting instead to reinstall his old trim. Respondent agreed.

On February 24, 2021, Complainant tendered $4,254.00 to Respondent towards the contract.

On or about May 18, 2021, work on the project began. Work stopped on or about May 21, 2021.

After the Directive was issued, Respondent made 1 phone call per week during the compliance period, totaling 3 calls, to schedule corrective work with Complainant. On September 14, 2021, the parties agreed that Respondent would perform corrective work on September 24, 2021; with a majority of the repairs being completed outside of Complainant’s residence, and only 1 or 2 repairs requiring Respondent to access the inside of the home. Although Respondent did attempt multiple corrections, Respondent’s workmanship on complaint items 1-3 did not satisfy the Registrar’s minimum standards.

Respondent’s subsequent “wood filler” offer was denied by Complainant because it was made after the expiration of the Directive’s compliance deadline.

In closing, Respondent argued that stucco damage is common when installing larger windows, and that Complainant’s trim was over 40 years old and in need of repair prior to Respondent’s window installation.

In closing, Complainant argued that Respondent had access to the project site between August 31, 2021, and September 15, 2021, but did not contact him until September 14, 2021, to schedule corrective work at the project site.

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)(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.”

The material facts in the case at bar are not in dispute.

It is undisputed that the parties had a residential window installation agreement for which Complainant paid Respondent in part. It is also undisputed that a result of Respondent’s poor workmanship, the Registrar issued a Directive that required compliance by September 15, 2021. It is further undisputed that after Investigator Avila’s compliance jobsite inspection, there were 3 outstanding complaint items that Respondent had not satisfactorily remediated.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainants’ project per contract. This is an affirmative defense that Respondent bears the burden to establish.

Here, Respondent’s arguments, that the remediations were outside the scope of her contract and that she was denied access to the project site to perform corrective work, are not credible and do not sustain the requisite burden of proof. It is clear from the record that Respondent was aware of the state of Complainant’s trim before she removed it, let alone attempted to reinstall it. By accepting the condition of the trim, Respondent was bound ensure that it met minimum workmanship requirements upon reinstallation. Additionally, Investigator Avila’s acknowledgement of Respondent’s remediation of complaint item 4, after the issuance of the Directive, directly contradicts Respondent’s claim that she was not granted access to the project site to perform corrective work.

The relevant and credible evidence of record establishes that Respondent did not timely complete corrections necessary to finish Complainant’s project, and did not have any justifications or excuses for her noncompliance.

Because Complainant established violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five (5) days after the effective date of the Final Order in this matter, Respondent Desert Breeze Glass LLC, ROC License No. 287915, be suspended for two (2) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).

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, December 28, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors