ALJDEC - Licensing

2022A-09358-CHC-ROC · Registrar of Contractors · 2023-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas G. Hull,

COMPLAINANT

Pueblo Concepts LLC

License No. ROC 190317,

RESPONDENT

No. 2022A-09358-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 8, 2023

APPEARANCES: Complainant Thomas G. Hull appeared on his own behalf. Larry Adams, Owner and Qualifying Party, appeared on behalf of Respondent Pueblo Concepts LLC, which was represented by James Hanson.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Pueblo Concepts LLC (Respondent) is the holder of License No. 190317 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 29, 2021, Thomas G. Hull (Complainant) entered into a contract with Respondent for the construction of a new home.

At or about the time Complainant entered into the contract with Respondent, he was directed to speak with Dorothy at Respondent’s office to select different colors and finishes for the home. Complainant and his wife wanted dark window and slider frames that were common in the area and that Respondent had installed in their son’s house when he built it a few years prior. Next to the item “Windows” on the “spec sheet”, someone wrote in “dark frames”.

Complainant did not speak to Mr. Adams about the color of the frames until he saw the tan windows installed and asked about them. At that time, Complainant asked Mr. Adams if they intended to paint the frames to achieve the dark color he had requested. Mr. Adams denied any plans to paint the windows.

To address the issue, Complainant started asking around to different paint providers about the possibility of painting the window frames and was initially quoted $4,000.00 to paint the window frames a dark color. Complainant agreed to split the cost with Respondent.

Because Complainant intended to have the window frames painted a dark color, Respondent reordered the sliders in a dark color frame that had become available since the parties entered into the contract. Mr. Adams did not believe that painted frames would hold up to the higher usage of the sliders.

After further inquiry, Complainant realized that the quote he had been provided was to paint the exterior window frames only. Complainant was given a quote of $10,000.00 to paint the inside and the outside of the window frames, but everyone he spoke to told him it was not advisable to paint the vinyl window frames.

Ultimately, Complainant decided it was not appropriate to paint the vinyl windows and sent Respondent different bids for the replacement of the windows. At that point, Mr. Adams told Complainant that he was done with Complainant’s home.

On or about October 14, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Brian Binkney. After a jobsite inspection on November 1, 2022, Investigator Binkney issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 11/23/2022.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Installed wrong windows (ordered black/bronze installed gray).

Investigator’s Observation: Windows in residence do not match color sheet provided by contractor and filled out by homeowner. Windows in residence are a grey color, vinyl material and homeowner selected to have dark frames put into residence. Contractor to replace windows with same color and material to match the sliding doors (dark frame color and metal material) that the contractor has already replaced.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent took no action to install different windows. After the deadline in the directive expired, Investigator Binkney was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Binkney testified that on the “spec sheet” for the new home construction, the category of windows had a written note next to it of “dark frames”. Investigator Binkney maintained that the “spec sheet” is part of a contract. Investigator Binkney stated he observed the window frames were light tan or grey vinyl and were not dark. Investigator Binkney admitted that there was room for interpretation as to whether the window frames were tan or grey, but that there was no room for interpretation as to whether the window frames were light or dark. Further, Investigator Binkney noted that the window frames were light tan or grey, but the sliders were black or dark bronze. Investigator Binkney stated that the mismatch of the window frames and the slider frames was a violation of the Registrar’s standards.

Complainant testified that he and his wife wanted dark window and slider frames that were common in the area and that Respondent had installed in their son’s house when he built it a few years prior. Complainant admitted that he never spoke to Mr. Adams about the color of the frames until he saw the tan windows installed and asked about them. Complainant asserted that painting the frames was compromise he was initially willing to make with Respondent, but as he talked to more people about it, it realized painting was not an appropriate remedy.

Mr. Adams testified that the windows installed were the darkest frames available to Respondent from its supplier at the time he ordered the windows. Mr. Adams avowed that Dorothy was aware that the supplier did not have black or bronze frames at that time, so she would not have promised Complainant that he could get those in the home. Mr. Adams acknowledged that offerings from suppliers are constantly changing and that by the time Complainant raised the issue about the window frames, black or bronze frames were available from the supplier. Mr. Adams stated he could not switch out the windows because the windows were custom sizes and could not be returned or resold. However, because Complainant was planning on painting the windows frames, dark frames were available from the supplier, and the sliders were a standard size and could be resold, he ordered the sliders with the dark frame to avoid the wear and tear on a painted frame. Mr. Adams admitted he did not have a discussion with Complainant regarding the meaning of “dark frames” on the “spec sheet” or to inquire whether Complainant would be willing to wait longer for black or bronze frames to arrive from a different supplier. Mr. Adams asserted that the “spec sheet” was not a part of the contract and was not referenced anywhere in the documents. When questioned, Mr. Adams stated he believed Respondent could paint the exterior of a house purple and the interior orange and yellow if he chose despite the selections the homeowner had listed on the “spec sheet”.

Administrative notice is taken of Respondent’s prior License record on February 28, 2023. Such prior License record reflects that Respondent’s License No. 190317 was first issued on November 7, 2003, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The evidence established that Respondent did not install the dark window frames selected by Complainant on the “spec sheet,” which constituted a part of the contract. Mr. Adams’ testimony that he understood “dark frames” meant the darkest frames that were available to him from his supplier was not credible. Mr. Adams admitted that offerings from suppliers were constantly changing. Mr. Adams took no steps to clarify Complainant’s selection, to explain the limited options available at that time, or to investigate if black or bronze frames were available from a different supplier. Therefore, Complainant established that Respondent departed from or disregarded the plans in violation of A.R.S. § 32-1154(A)(2)(a).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 190317 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, February 28, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

James Hanson, Esq.

LANG & KLAIN PC

[email redacted]

Thomas G. Hull

[email redacted]

Brian Binkney

[email redacted]

By: OAH Staff