ALJDEC

99F-F0158-ROC · Registrar of Contractors · 1999-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 25, 1999 in Flagstaff, Arizona. APPEARANCES: Complainant Ron Cornelius appeared representing himself. Scott Jay Roberts, owner of Home Alternatives, appeared representing himself. DMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________

The hearing in this matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent Home Alternatives was the original supplier in 1991 of Jordan brand windows for a second occasional-use home owned by Complainant Cornelius in Coconino County, Arizona. 2. Within the five year warranty period, some window replacements were made due to vapor failures of the Jordan double paned window units. 3. Recently, Complainant noticed additional vapor in some windows, and telephonically contacted Respondent regarding replacement. Respondent advised Complainant that all they could do was order replacement glass and that Complainant would need a contractor to replace the glass. After some discussion, the window glass was special ordered, and Respondent agreed to install the replacement glass. 4. The July 1998 sales invoice shows two pieces of glass (total cost $110.00) and labor ($240.00) to install. Complainant paid a Deposit of $117.48 on the job. 5. A third piece of glass was apparently ordered by Complainant, but neither the date nor receipt of this order was stated, and the installation cost was also not indicated. 5. In October 1998, Respondent sent two persons to Complainant’s home with the replacement glass and vinyl to make the replacement repairs. 6. At that time, Respondent’s workers began the repairs and found that the windows had been caulked, and the “stops” were caulked over. In attempting to remove the vinyl and stops, Respondent’s worker cracked an original outer glass pane. The work came to a stop, and Respondent’s worker advised Complainant that they could not proceed, at that time, to complete the replacement repairs without new stops, in order to properly replace the glass. Respondent did not have any new stops with them, as this was not a regular replacement or repair item. 7. Respondent subsequently advised Complainant of the new cost for the repairs, with the cost of the stops. Neither party was specific as to the timing of making or receiving the new estimate for the repairs. 8. Complainant did not ask Respondent to make the repairs under the new estimate. 9. On October 30, 1998, Complainant filed a complaint with the Registrar along with a copy of the July 1998 invoice. The complainant alleged that Respondent broke original glass, and refuses to complete the contracted work. 10. In November 1998, Respondent’s service representative advised Complainant in writing that they had only estimated the job, admitted that they cracked the glass trying to remove one of the caulked panes and stops, and offered to replace the cracked glass free of charge. Respondent further advised Complainant to tell whoever he hired to replace the glass not to order that pane of glass. 11. In December 1998, Complainant advised the Registrar that Respondent’s response was unsatisfactory and that Respondent’s owner had not replied to the complaint. Complainant asked that the matter go to hearing or whatever other means to have the Respondent comply with the contract. 12. In January 1999, Respondent’s store manager called Complainant and offered to refund the Deposit and to still give a replacement pane free of charge in order to resolve the matter. Complainant refused the offer. 13. By letter dated January 15, 1999, Respondent advised the Registrar of its latest offer, and the refusal. 14. On January 29, 1999, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.1, 32-1154.A.7, and 32-1154.A.3 specifically Arizona Administrative Code (A.A.C.) R4-9-108. 15. Respondent’s February 3, 1999 written response indicates its position to be that Complainant had not informed them of the modifications (caulk) to the windows which required additional parts and labor for the repairs. 16. The matter was not resolved informally, and was subsequently Noticed for hearing. At the hearing, the lengthy and sometimes acrimonious testimony about the situation ran the gamut of alleged refusal to complete the contract, “modifications” to the exterior of the window units and whether a “contract” existed. The parties have differing recollections of what each now says were the exact words said during their conversations and at the job site. 17. Complainant insists that Respondent be held responsible for the alleged failures as cited by the Registrar with either a suspension or revocation of his license. Complainant testified that he did not ask Respondent to make repairs so that the repairs would be “to factory specifications”. Complainant testified that he is not at all concerned about the cost of the cracked glass replacement, and that his injuries/damages are the loss of four[1] days business to take care of this matter. Complainant testified that he is contracting with another contractor, B&T Glass Company, to make the repairs. Complainant did not indicate specifically when B&T Glass was to make the repairs, but the implication was that they would be making the repairs[2] soon, if not that same day as the hearing. 18. Respondent testified that, as an authorized Jordan window representative, they can only make the repairs to bring things up to factory specifications, and that they were ready to do so, in addition to replacing the glass they cracked free of charge. THE APPLICABLE LAW

A.R.S. §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. xxx 3. Violation of any rule adopted by the Registrar.[3] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

CONCLUSIONS OF LAW 1. The testimony and evidence at the hearing established that Respondent did, in fact, not refuse to complete the contract, but that Complainant did not accept the proffered repairs which were offered to be made up to factory specifications. There can be no finding that Respondent abandoned the contract, as Complainant would not allow Respondent to complete the repairs. Therefore, there is no violation by Respondent of A.R.S. §§32-1154.A.1 or 32-1154.A.3.

2. The testimony and evidence at the hearing established that Respondent has not done any fraudulent act resulting in substantial injury to Complainant. Respondent stands ready to make a free replacement of the glass pane they admit they cracked, and to refund the Complainant’s Deposit. The testimony and evidence shows that Respondent has retained Complainant’s Deposit, which was a deposit for the entire job. Respondent did not do the job, and should refund the Deposit. As to this item, there is a violation by Respondent of A.R.S. §32-1154.A.7, a wrongful act, resulting in injury to Complainant. 3. It is not a proper function of this tribunal to adjudicate and award money damages which must be recovered, if at all, through civil court action. However, the Registrar is empowered to impose reasonable conditions which may serve to reduce or eliminate any otherwise appropriate disciplinary penalties for violations of the State’s contracting laws. Therefore, whenever corrective measures on a jobsite are no longer warranted or possible, the remedy of restitution, partial or total, is equitably justified. In this way, a prevailing Complainant does not have to await the ultimate outcome of protracted civil litigation to recover at least a portion of a demonstrated loss. Equally significant, a Respondent is given the means to control, to some extent, the severity of any disciplinary penalty. Moreover, any amounts paid in satisfaction of a condition affecting licensure may properly be credited or applied against any civil judgment ultimately obtained in favor of either party. In this case, although Complainant alleges the injury of four days lost business in this matter, there is neither evidence nor information available to account for any amount in such allegation. RECOMMENDED ORDER 1. In view of the foregoing, it is recommended commencing on the effective date of this ORDER, that the Respondent’s Class B license be actively suspended for one day, on the effective date of Registrar’s Order in this matter. 2. While Respondent offered the free pane of glass, for the pane they admitted they broke, to Complainant’s choice of contractor, it was not apparent that Complainant would partake of that offer, or that Complainant was having the windows repaired with the same type of glass. If the windows have not yet been repaired, then it would be appropriate for Respondent to provide that pane of glass to Complainant’s choice of contractor as a condition relating to the above recommended discipline. However, if the windows have already been repaired, and Complainant did not partake of Respondent’s offer, then a condition that Respondent supply the glass is unwarranted. Based on the circumstances, it is further recommended that Respondent either supply the pane to Complainant’s contractor if the windows are as of yet unrepaired or that Respondent pay to Complainant an sum in the amount of the cost of that pane of glass, not to exceed $60.00. 3. It is further recommended that the above suspension shall not take place if Respondent both complies with Recommendation Number 2 above and reimburses Complainant for the $117.48 Deposit received, and also provides written documentation of the same to Registrar prior to the effective date of Registrar’s Order in this matter. RECOMMENDED ORDER dated this day: July 8, 1999.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of July, 1999 to:

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

ATTN: Joyce Armijo

By ___________________________

----------------------- [1] Complainant alleges the fourth day to be this day of the hearing. [2] A witness from B&T Glass was brought to the hearing by Complainant to testify on his behalf, and indicated that his company was going to make the repairs. [3] Specifically, A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827