ALJDEC - Licensing
2023A-05261-CHC-ROC-RHG · Registrar of Contractors · 2023-11-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marie Herdt,
COMPLAINANT
v.
Bunkers Glass Of Phoenix Inc.
License No. ROC 153969,
RESPONDENT
No. 2023A-05261-CHC-ROC-RHG
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 13, 2023
APPEARANCES: Complainant Marie Herdt appeared via Google Meet on her own behalf. Kevin Dooley appeared via Google Meet on behalf of Respondent Bunkers Glass of Phoenix Inc. Registrar of Contractor Investigator John Smith appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Bunkers Glass of Phoenix Inc. (Respondent) is the holder of License No. 153969 issued by the Arizona Registrar of Contractors (Registrar).
On or about June 15, 2022, Marie Herdt (Complainant) signed a contract with Respondent for installation of a sliding glass patio door. Complainant was part of a home developer, Fairway Homes West based out of Tacoma, Washington and was building a home in Casa Grande, Arizona.
On or about May 4, 2023, the Registrar received a Complaint containing three items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator John Smith. The jobsite inspection was performed on May 18, 2023.
Investigator Smith then issued a written directive on or about May 22, 2023 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 June 7, 2023.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “faulty sliding door install.”
Investigator’s Observations: Verified.
The respondent stated the framed opening was not the correct size for this door; however, the respondent chose to install the door anyway.
The respondent confirmed the door was installed without properly fastening through the manufacturer’s nailing flange.
Instead of securing the door with the manufacturer’s nailing flange, the top jamb of the door is shimmed and fastened directly to a load bearing beam above the door.
The respondent also confirmed the door was supplied by the manufacturer with incorrect sized glazing beads, and missing glazing beads.
Currently:
• The top jamb of the door is excessively warped.
• At least one strike plate components is missing from the jamb.
• Fasteners are missing from other strike plate components.
• Drill/screw holes are visible through the top jamb.
• At least two glazing beads are not the correct size
• At least two glazing beads are missing.
• Due to the top jamb being excessively warped, the doors will not properly or fully close.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
On June 13, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).
On or about June 28, 2023, Respondent e-mailed an Answer to the Registrar.
On or about September 22, 2023, a Notice of Hearing was issued setting a hearing on November 13, 2023, at the Office of Administrative Hearings, an independent state agency.
At hearing, Investigator Smith testified as to his involvement and the above timeline.
Investigator Smith testified that Respondent informed him that it did not carry liability insurance during the corrective work period, therefore it could not complete the Directive.
In addition, Investigator Smith testified that the door would not close and part of the vinyl frame was cracked. Investigator Smith also testified that the door was fasted directly to a load bearing beam above the door, the top jamb was excessively warped, at least one strike plate was missing, there were visible holes through the top jamb and glazing beads were either missing or the incorrect size.
Further, Investigator Smith testified that Respondent had promised to send him a copy of the manufacturer’s instructions demonstrating that he followed the same, but Investigator Smith never received the correspondence.
Complainant testified on her own behalf and called Jorge Victoria, Sr. as a witness.
Complainant testified that the door was not installed properly and because Respondent did not have liability insurance, she had to hire a different trade to complete the job. Further, there was no other correspondence from Respondent thereafter to make some sort of settlement on the matter.
Mr. Victoria testified that the door was not installed per manufacturer specifications, as there are not supposed to be screws in the overhead jamb, and glazing bead were missing. Mr. Victoria also testified that there were defective pieces which were installed.
Kevin Dooley testified on behalf of Respondent and testified that the door was installed per manufacturer’s specifications. He testified that when he installed the door, there were no cracks and took pictures of the same, alleging that any cracks were caused by someone else after installation.
Further, Mr. Dooley testified that he sent the manufacturer’s specifications to Investigator Smith.
Mr. Dooley also testified that the only item missing were some glazing beads as the strike plate was present during installation and the door worked correctly after its installation.
Finally, Mr. Dooley testified that he sent an email to Complainant informing her that his liability insurance lapsed therefore he could not complete the repairs.
Administrative notice was taken of Respondent’s prior License record on November 28, 2023. Such prior License record reflected that Respondent’s License No. 153969 was first issued on March 30, 2000, and reflected that there were 3 open complaints, one of which was the present complaint.
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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There were missing pieces and the top jamb of the door was shimmed and fastened directly to a load bearing beam above the door. Further, there was no persuasive evidence presented that the installation was performed pursuant to the manufactures specifications. Nor was there persuasive evidence that the damage occurred after installation as Mr. Dooley alleged. 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 and Mr. Dooley admitted that he failed to complete the corrective work following the Directive being issued due to lack of liability insurance. However, there was no evidence provided that he attempted to resolve the matter through some other settlement. Therefore, Complainant established that Respondent failed to take appropriate corrective action 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. 153969 for a period of two days.
It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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)(7), 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, November 28, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Marie Herdt
[email redacted]
Bunkers Glass Of Phoenix Inc.
[email redacted]
By: OAH Staff