ALJDEC

96F-0024-ROC · Registrar of Contractors · 1998-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 1998 APPEARANCES: Complainant appeared on her own behalf and Respondent was represented by its attorney, D. Jay Ryan. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. At the outset of the scheduled hearing, Respondent filed a motion in limine for the purpose of limiting the scope of the hearing. Apparently there was information contained in Complainant’s response to Respondent’s earlier motion to dismiss wherein Complainant alluded to her intent to raise certain issues which Respondent believed were not enumerated in the filed complaints on the instant matter. 2. A brief review of the history of this complaint was necessary in order to rule on the above-described motion. Information in the Registrar’s file indicated that Complainant had filed two separate complaints against Respondent, with the second having been treated as an addendum or amendment to the first. Therefore, only one complaint number was placed onto the Registrar’s records regarding the two filed complaints. 3. Apparently the items contained in the first complaint were basically resolved prior to the filing of the second complaint. The second complaint only mentioned one item and that was the issue of the failure of the painted finish on the windows installed in Complainant’s home. A further review of the Registrar’s file reveals that Complainant requested the instant hearing merely as a direct result of her continued dissatisfaction with the condition of the painted finish on her window frames. 4. The paint finish on the window frames was the only matter set forth on the filed second complaint and the only issue that was inspected by the assigned inspector for the Registrar of Contractors as a direct result of said second complaint and thus, the only matter that Respondent had any proper notice of was an issue to be determined at an administrative hearing. Therefore, based on basic principles of due process under the law, Respondent’s motion in limine was granted, thereby limiting the instant hearing to only the issue of the paint finish on the window frames. 5. The following salient facts were adduced at the hearing and are important to note: a. Complainant moved into her home in February 1995 (almost three years ago). b. The issue of the paint finish on the window frames was not set forth in a filed complaint with the Registrar of Contractors until January 1996. c. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held in 1996, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified repairs to the window frames within a state period of time. Subsequent to issuance of the aforementioned letter requiring performance of corrective work, the Registrar of Contractors ultimately received sufficient information from the parties that the repairs had been accomplished in an appropriate manner and thus, closed the complaint. d. Almost one year after the instant complaint had been closed by the Registrar in 1996, Complainant again contacted the Registrar of Contractors in 1997 with the complaint that the window frame paint repairs, which had been accomplished by Respondent in 1996, were unsatisfactory. Based on this 1997 communication, the Registrar of Contractors re-opened the complaint. e. As a direct result of the re-opening of the complaint, the assigned Agency inspector inspected the window frames again in 1997. At the 1997 inspection, the inspector found the condition of the window frames to be within minimum industry standards for painted window frames and “in good shape for the age of the house.” As a result of his findings, the inspector recommended no action by the contractor and advised Complainant if she disagreed with his conclusions she had the right to request an administrative hearing. f. Complainant was not satisfied with the above-described finding of the Registrar’s inspector and thus, requested the instant hearing. 6. The weight of the evidence of record demonstrated that although there may be minor defects in the painted finish of the window frames in Complainant’s home, the complained of defects are either de minimus, difficult to detect when viewed from a reasonable distance, or issues of expected wear and tear, which must necessarily be viewed as normal homeowner maintenance. Although the painted finish on the windows is therefore, not perfect, the Registrar of Contractors does not apply perfection standards when determining whether the State’s Contracting laws have been violated but merely views construction from the perspective of minimum industry standards for acceptable workmanship. Complainant had the burden of proof to establish, at the hearing, the violations alleged in the Citation issued against Respondent’s contractor’s license and, under the testimony and evidence presented herein, failed to sustain the requisite burden of proof on the construction issue of the paint finish on the window frames . CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, January 30, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of __________, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826