ALJDEC

98F-3240-ROC · Registrar of Contractors · 1999-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 1999. APPEARANCES: John T. Morris, Complainant, appeared on his own behalf. Lawrence Landau appeared representing Phoenix Window Company, Respondent and holder of class B license number 079627.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. John T. Morris, Complainant, resides at 35202 N. 3rd Avenue, Phoenix, Arizona. 2. Lawrence Landau is Qualifying Party on class B license number 079627, held by Phoenix Window Company, Respondent. Mr. Landau is no longer actively contracting. 3. This matter arises out of a contract for remodeling that Respondent entered with Complainant on August 9, 1996. Pursuant to the contract, Respondent was to construct an Arizona Room and install several double-pane windows and french doors. During the course of the construction, Complainant expressed concern about Respondent’s workmanship. 4. Dissatisfied with Respondent’s work, as well as Mr. Landau’s response to his concerns, Complainant filed a Complaint with the Registrar on March 31, 1997. In the Complaint, Complainant charges that Respondent failed to perform the construction and installations in a workmanlike manner, and that Respondent failed to obtain the proper inspections and permits from local building authorities. 5. On August 7, 1998, after inspecting the construction and installations, Lewis King, Inspector for the Registrar, issued a Corrective Work Order (“CWO”) ordering Respondent to complete corrective measures and obtain the proper inspections and permits from local building authorities. (See Attachment A, items 2-10). The preponderance of the evidence establishes that Respondent does not dispute the CWO, and that Mr. Landau agreed to the corrective measures. Accordingly, The preponderance of the evidence establishes that the CWO is reasonable and justified. 6. During his prehearing inspection of April 5, 1999, Inspector King inspected each of the items on the CWO that required corrective action. Inspector King testified that Respondent attempted corrective measures with respect to items 2 and 4 of the CWO only. The Inspector found that only item 2 was properly remedied. Inspector King’s testimony was uncontroverted and is found to be credible. Thus, the preponderance of the evidence establishes that, although Respondent attempted some corrective measures, Respondent failed to fully comply with the CWO. However, the preponderance of the evidence establishes also that, at some point, Complainant refused Mr. Landau’s workers access to the property to complete the corrective measures. Complainant’s refusal to allow access justifies, partially, Respondent’s failure to fully comply with the CWO. Those corrective measures Respondent actually undertook as to item 4 fail to meet minimum standards, as Inspector King testified. To the extent such measures are unworkmanlike, Respondent failed to comply with the CWO without valid justification.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and codes. 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. Complainant fails his burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged departure from or disregard of building codes of the state or any political subdivision of the state in any material respect that is prejudicial, Complainant sustains his burden of demonstrating violations; Complainant demonstrates sufficient evidence that Respondent violated A.R.S. §32-1154(A)(2). 4. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts, Complainant sustains his burden of demonstrating violations. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enter., Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (Ariz. 1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). Complainant demonstrates sufficient evidence that Respondent’s actions and/or omissions outlined in paragraphs 4 and 6 of the Findings of Fact above, as well as the CWO itself, constitute violations of §§32-1154A(7) and A(3), namely A.A.C. R4-9-108. 5. With respect to Respondent’s alleged failure to take corrective action, Respondent fails its burden of demonstrating valid justification for its failure to fully comply with the CWO. Respondent’s failure constitutes, therefore, a violation of §32-1154(23).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that, commencing 20 days after the effective date of the final order entered in this matter, the Class B license of Respondent be suspended and that a civil penalty of $1,000.00 be imposed. It is recommended further that Respondent have an opportunity to avoid suspension of its license and imposition of the civil penalty. If Respondent completes and effectively corrects items 3 through 10 of the CWO (see Attachment A), on or before the expiration of 20 days after the final order’s effective date, then no license suspension shall take place, no civil penalty shall be imposed, and the Citation and Complaint in matter shall be closed. Finally, it is recommended that the Registrar inspect Respondent’s corrective measures to ensure that the work is done timely and meets industry standards. Done this day, April 8, 1999.

_________________________________ Kip M. Micuda Administrative Law Judge

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

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

By _______________________________

----------------------- [1] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826