ALJDEC

99F-M0157-ROC · Registrar of Contractors · 1999-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 7, 1999 APPEARANCES: Complainant appeared on her own behalf and Respondent was represented by its attorney, William Morga. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Pursuant to contract Respondent was retained by Complainant to remove the existing windows in her home and install new replacement windows. Complainant alleges in her complaint that Respondent violated the State’s Contracting laws and the pertinent issues are discussed in the findings below. 2. The following salient facts were adduced at the hearing and are important to note: a. The parties entered into the applicable contract for new windows in June 1998. In the latter part of July Respondent commenced working on the project.

b. Evidence of record demonstrated that on the day Respondent commenced work on the project, he received an extremely irate phone call from Complainant, wherein she was yelling in an offensive manner at Respondent regarding the construction project on her mother’s home. c. Based on the irate nature of the phone call, Respondent appeared at Complainant’s home to determine whether or not there was “a problem” between Complainant and Respondent. Although there was no adequate evidence that Respondent was acting in a less than professional manner at this point in time, the parties were not communicating in a friendly manner and at the end of the confrontation, Respondent was under the reasonable belief that Complainant had told him to get off her property and that she was “calling the cops.” d. At the point in time when the above-described confrontation occurs, a number of the new windows had already been partially installed. Respondent instructed his worker to “button-up” the project in the most expeditious manner possible, which necessarily entailed removing the partially installed windows and placing the original windows back in the window frame openings. The worker was instructed by Respondent that upon completion of putting the project back in its original state that he was to leave the site. e. All of the new windows which had been partially installed were replaced with the original windows except for the new living room windows. Since Respondent had altered the framing opening for the living room windows, these new windows were necessarily left in place. f. The new windows in question were custom ordered for Complainant’s home. Nevertheless, Respondent has made no attempt to have Complainant pay for the windows that it removed and which it currently has stored in its warehouse. Moreover, Respondent has not made any attempt to be paid for the new living room windows that were installed in Complainant’s home and left in place. g. The applicable contract between the parties involved Respondent providing and Complainant accepting a finance agreement from a third party finance company. Respondent testified at the hearing that upon completion of a project, such as the one at issue herein, the homeowner must certify to the finance company that the project is complete and that they are satisfied with the work. Respondent believed, based on the nature of Complainant’s irate actions, that she would not certify the work as being satisfactory and thus, he had a fear referable to receiving payment for the completed project. h. Except for some minor finish work on the living room window installation, the above-described installation and removal of the windows all occurred on a singular day. The living room window installation was completed on another day. i. Shortly after Respondent left the project, Complainant filed the instant complaint with the Registrar of Contractors. j. An original jobsite inspection by the assigned inspector for the Registrar of Contractors was not held due to the fact that the inspector, upon reviewing the filed complaint, was not of the opinion that same contained workmanship issues to be reviewed at the jobsite. Nevertheless, said inspector did conduct a “pre-hearing” jobsite inspection wherein Respondent was in attendance. k. The Registrar’s inspector appeared at the instant hearing and testified to the fact that at the “pre-hearing” jobsite inspection all of the windows appeared to be caulked and sealed on the exterior side. He indicated that he was unaware of the condition of the windows prior to Respondent working on same and thus, would have considerable difficulty arriving at any determination that Respondent’s work on the project was not within minimum standards for acceptable workmanship. 3. The weight of the evidence of record was sufficient to support a finding that the re-installed original windows were adequately caulked on the exterior side. Although Complainant contends that there are gaps or voids on the inside portions of the window installation, there was no adequate evidence to establish that applicable construction standards for mobile home windows require any caulk or other sealant on the inside portion of the window installation. 4. Complainant also raised an issue of broken locks on a number of the re-installed windows. Nevertheless, the instant record supported a finding that in removing and re-installing the windows, Respondent would not have had any need to “touch” the interior locking devices, in that the windows and frames were all part of a singular assembly which was screwed onto the outside of the home. The evidence presented was not adequate to support any finding that Respondent’s work on the project damaged the locking mechanisms. Thus, Complainant was unable to sustain the requisite burden of proof on this issue. 5. Although there was a valid contract between the parties, it is determined and held that Complainant’s conduct on the day in question herein effectively constituted a repudiation of the contract, thereby allowing Respondent to “walk-off” the project after basically placing Complainant back in the condition she was in before Respondent commenced work on the contract. Based on the actions of Complainant, Respondent was reasonable in attempting to mitigate his damages by re-installing the original windows. In this regard it is also important to emphasize that Respondent did leave behind the new living room windows. The new living room windows are a significant upgrade over the original windows that were in place in Complainant’s home and thus, it is determined that Complainant received a definite benefit from receiving and not paying for the new living room windows.

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, April 21, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

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

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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826