ALJDEC decisions subject to certification as final

07F-G0027-ROC · Registrar of Contractors · 2007-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2006 APPEARANCES: Complainant Louis Passalacqua appeared on behalf of Complainants Louis and Martha Passalacqua; Respondent Desert King Windows Co. Inc. failed to appear ADMINISTRATIVE LAW JUDGE: Marianne T. Bayardi _____________________________________________________________________ The issue presented by this matter is whether Respondent Desert King Windows Co. Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Respondent Desert King Windows Co. Inc. (“Respondent”) is the holder of a Class C-61 License (No. 157938) issued by the Registrar of Contractors (“ROC”). 2. Complainants Louis and Martha Passalacqua own a home located at 9926 Gulf Hills Drive, Sun City, Arizona (the “Home”). 3. On or April 21, 2006, Complainants entered into a contract with Respondent to replace all windows at the Home with new “Low E” windows, dual paned with argon gas. The total contract price was $8,400.00. Complainants have paid Respondent in full. 4. Respondent replaced all windows and the arcadia door at the Home on May 22, 2006. 5. Complainants noticed that their air conditioner, and later heater, ran much more often after Respondent replaced the windows. Complainants experienced a dramatic rise in their electric bills for months during which the air conditioner or heater was running and noted their usage also went up dramatically compared to the previous year. Additionally, Complainants could feel heat or cold (depending on the time of year) coming in through the new windows and the temperature in the Home was much more variable depending on the time of year and day. Moreover, Respondent did not appear to have reinstalled the molding properly after it installed the new windows as gaps could be seen. 6. On July 5, 2006, Complainants filed the instant Complaint against Respondent with the ROC. The Complaint, reproduced verbatim, alleged: Whole house windows & patio door installed 5-22-06, windows are not as demonstrated but at a lower quality than their replacement creating uneven temp. and great discomfort throughout the house and utility bills to triple, company will not respond to repeated calls.

7. ROC Inspector Jim Hennessy was assigned to investigate the Complaint. Inspector Hennessy did not perform any inspections at the Home. 8. On July 20, 2006, Complainants requested the instant administrative hearing. 9. On September 18, 2006, the ROC issued Citation and Complaint No. G07-0027 against Respondent, alleging that Respondent had violated A.R.S. § 32-1154(A)(7). 10. On September 21, 2006, Respondent filed a written Answer to the Citation and Complaint. 11. On November 9, 2006, the ROC issued a Notice of Hearing (“NOH”) scheduling this matter for hearing on December 21, 2006 at 1:30 p.m. at 1400 West Washington, Suite 101, Phoenix, Arizona. 12. Respondent failed to appear for the hearing on December 21, 2006. Prior to the start of the hearing, the Administrative Law Judge waited more than 15 minutes in order to give Respondent the opportunity to appear. Respondent failed to appear, and further failed to inform the Office of Administrative Hearings of any reason that would establish good cause for failing to appear. After the allotted time to appear had passed, the hearing proceeded in Respondent’s absence. 13. At hearing, Complainants contended that Respondent failed to install the agreed upon windows and instead installed a lower quality window and arcadia door resulting in uneven temperature and discomfort in the Home as well as a dramatic increase in electricity use and related bills. 14. Mr. Passalacqua testified at hearing that Respondent’s sales representative, Frank Johnson, demonstrated a “Low E Argon Window” to Mr. Passalacqua. In his demonstration, Mr. Johnson shot heat at the exemplar window and invited Mr. Passalacqua to feel the other side of the window. Mr. Passalacqua felt no heat on the other side. Mr. Johnson first quoted Complainants a total contract price of $13,500.00. Mr. Passalacqua informed Mr. Johnson that he already had a bid for $8,400.00 from another company. Mr. Johnson asked to see the other bid and then called his boss to discuss the situation. Mr. Johnson then informed Complainants that Respondent could install the new windows and arcadia door for the same price, namely $8,400.00. Mr. Passalacqua inquired whether that price would be for the same windows discussed and demonstrated. Mr. Johnson told him that it would be the same windows discussed and demonstrated. 15. Mr. Passalacqua testified further that, after Respondent installed the new windows and arcadia door, Complainants noticed the temperature issues described previously. Complainants contacted Respondent but Respondent did not address the issue of the windows and the Home temperature.[1] One employee came to the Home and made meter measurements of the temperature at various locations around the Home. He did not inform Complainants of the results but told them he would be meeting with the boss later that same day and would discuss with him what Respondent could do. Complainants indicated that they did not hear back from Respondent in response to that visit by its employee. 16. Mr. Passalacqua testified that, particularly in the bathrooms, one can feel the heat or cold coming in from outside. He also testified that the temperature throughout the Home is inconsistent and dependent on the time of year, among other things. These temperature variances are new to the Home since Respondent removed the old windows and installed the new windows. Additionally, the dramatic rise in energy use is new since the installation of the new windows and arcadia door as well. 17. The Administrative Law Judge finds that Complainants’ request that Respondent be required to pay a portion of the increase in their electricity bills is a matter more appropriately determined by a civil court of competent jurisdiction. 18. The Administrative Law Judge finds, based on the weight of the credible, probative evidence, that Respondent failed to install windows in keeping with what its salesman demonstrated to Complainants, causing discomfort and temperature problems throughout the Home. CONCLUSIONS OF LAW 1. In this administrative proceeding, Complainants bear the burden to prove, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(7). See A.A.C. R2-19-119. 2. 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). 3. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . resulting in another person being substantially injured.” The Administrative Law Judge concludes that the temperature variances and discomfort throughout the Home that has occurred since Respondent replaced Complainants’ windows and arcadia door at the Home demonstrated that Respondent did not install the contracted windows and that such failure by Respondent constituted a wrongful act that substantially injured Complainants. Therefore, the Administrative Law Judge concludes that Respondent has violated A.R.S. § 32- 1154(A)(7). 4. Upon consideration of the foregoing, the Administrative Law Judge concludes that it is appropriate for the ROC to impose discipline against Respondent’s Class C-61 License (No. 157938). 5. When formulating and submitting an appropriate recommended disposition in this matter, Administrative Law Judge considered Respondent’s failure to appear at hearing as an aggravating factor. By its failure to appear, Respondent demonstrated its unwillingness to be bound by the ROC’s regulatory authority and to comply with this State’s contracting laws. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the ROC’s Order, Respondent’s Class C-61 License (No. 157938) will be revoked. If, on or before the effective date of the ROC’s Order, Respondent provides sufficient written proof that it has, at Respondent’s sole cost and expense and in a workmanlike manner in accordance with applicable workmanship standards, replaced and properly installed the contracted Low-E Argon Windows and arcadia door at the Home, than no revocation will take place. It is further recommended, in addition to the foregoing license revocation, if any, that Respondent’s Class C-61 license be placed on disciplinary probation for a period of one hundred twenty (120) days. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, January 4, 2007.

______________________________________ Marianne T. Bayardi Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] Respondent did return the day after installation to replace a window its workers had broken. Respondent’s employee also returned to the Home to repair a faulty lock on the arcadia door.

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