ALJDEC

98F-M1215-ROC-rhg-res · Registrar of Contractors · 1999-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: November 18, 1999 at 9:00 a.m. APPEARANCES: Complainant appeared through her attorney, Roger Brodman, Esq.; Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Complainant presented evidence and testimony with respect to claims on which the undersigned originally had decided against her, on which the Registrar of Contractors subsequently granted rehearing. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order regarding the claims at issue are made. FINDINGS OF FACT Respondent’s Failure to Appear at the Rehearing Notices of the date and time for rehearing in this matter were mailed to Respondent at 1631 W. Maddock, Phoenix, AZ 85027 and at 8825 N. 29th Ave., Phoenix, AZ 85051, which are, respectively, the Registrar’s current address of record for Respondent and the address he provided to the Office of Administrative Hearings when he informed it of his bankruptcy. Although the beginning of the duly noticed hearing was delayed twenty minutes to allow Respondent additional travel time and was concluded more than an hour later, he neither appeared, personally or through a duly authorized representative or attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be delayed further, nor presented any evidence at the hearing to dispute or undermine Complainant’s evidence regarding the issues on which the Registrar had granted a rehearing. The Asphalt Shingle Overhang In support of Complainant’s motion for rehearing, she provided copies of selected portions of the NRCA Roof and Waterproofing Manual (4th ed.), which advised that the base course of shingles be extended ¼” to ¾” to direct runoff away from the fascia board. This advice contradicts Respondent’s testimony at the first hearing that the roofing manufacturer did not advise such installation, which testimony was unsupported by any documentary evidence from the manufacturer or any professional association. Complainant’s additional evidence on rehearing establishes that Respondent failed to comply with the manufacturer’s directions and applicable industry standards for installation in failing to lap the shingles over the fascia board. Flooring and Electrical Fixtures Complainant testified that the itemized list that Respondent prepared of various items of construction and their costs only included those items for which Respondent felt she might beat his price, but was not intended to constitute the parties’ contract. Flooring and electrical fixtures were not included on the list because Respondent told her he did not believe anyone could beat his price. Electrical fixtures and outlets for ceiling fans were shown on the plans and Respondent actually installed eight fixtures. He did not install other fixtures shown on the plans, however. In addition, Respondent discussed flooring with Complainant and showed her carpeting and tile samples. Complainant’s additional evidence on rehearing establishes that the plans and the parties’ contract required Respondent to install flooring and electrical fixtures and that he has only partially performed this requirement. The HVAC System Complainant testified that Respondent had told her that he would install a split system on the residence, which system was superior to a roof-mounted system and was the same kind of system as he had installed on his own residence. Complainant’s son, Blake Barganski, testified Respondent had marked the ground where a pad would be poured for the air conditioner on the ground outside the garage, but never poured the pad. Complainant testified that, when she asked Respondent about an exterior door from the garage, which her wheelchair-bound husband needed, Respondent specifically referred to the location for pad for the air conditioner in the split system, which should have been poured just outside the door. Complainant testified that Respondent had never obtained her permission to change the HVAC system. Although Complainant admitted at the hearing that she had installed a roof- mounted evaporative cooler, she testified that she did not approve installation of a roof-mounted air conditioner. The subdivisions that are being built around Complainant’s residence generally prohibit roof-mounted air conditioners and evaporative coolers. Complainant fears that Higley, where her residence is located, or her neighborhood’s homeowners’ association may require her to remove the roof-mounted evaporative cooler and air conditioner. Complainant’s additional evidence on rehearing establishes that the roof- mounted system he installed was contrary to the plans and the parties’ contract, which required Respondent to install a split HVAC system, and that this unauthorized change substantially injured her. Master Bath Complainant showed the portion of the plans that required a cultured marble vanity top, a glass-block wall, ceramic tile, and a cast-iron bathtub in the master bathroom. Complainant testified on rehearing that she never orally agreed that Respondent could replace these items with the one-piece acrylic fiberglass tub and tub-surround and laminate countertop that he installed in the master bathroom. Respondent never submitted a written change order for this change. Complainant’s additional evidence on rehearing establishes that Respondent failed to follow plans without Complainant’s permission and to her substantial injury when he installed cheaper fixtures in the master bathroom than what the plans required. The Pot Shelf in the Kitchen Complainant testified that she never consented to omission of the pot shelf from the kitchen. Complainant also testified that the result of Respondent’s omission of the pot shelf is that space for over-the-counter cabinets in the kitchen is drastically reduced. Complainant offered into evidence photographs of the kitchen, which show a small room. Without the pot shelf, storage space in the kitchen is inadequate. Complainant’s additional evidence on rehearing establishes that the she did not consent to Respondent’s departure from plans in omitting the pot shelf in the kitchen, that his omission was material, and that Complainant was substantially injured by the omission. Status of Respondent’s Contractor’s License Administrative notice is taken of the Registrar’s records and the Decision and Order in Case No. M99-0739, which reveal that Respondent’s contractor’s license was to have been revoked on November 16, 1999 due to his failure to answer the Citation and Complaint in that case. CONCLUSIONS OF LAW In this rehearing, as at the original hearing, Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 at page 1064 (6th ed. 1990). Complainant’s evidence at the rehearing establishes that Respondent violated A.R.S. § 32-1154.A.7, .23, and .3 in failing to install an asphalt shingle overhang, a split HVAC system, cultured marble, tile, glass blocks, and a cast-iron bathtub in the master bath, and a pot shelf in the kitchen. Complainant’s evidence at the rehearing also establishes that Respondent violated A.R.S. § 32-1154.A.7 and .3 in failing to install flooring or to complete installation of electrical fixtures in Complainant’s residence. RECOMMENDED ORDER Based on the foregoing, it is recommended that Registrar allow Complainant to make a claim to the Residential Contractors’ Recovery Fund for the reasonable cost of correcting the statutory violations described in Conclusions of Law Nos. 2 and 3 above. Done this day, November 23, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of November, 1999, to:

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

By ___________________________

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