ALJDEC decisions subject to certification as final

10F-0824-ROC · Registrar of Contractors · 2010-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2010 APPEARANCES: Chris and Lori Buls appeared personally. Ted’s Discount Blinds, L.L.C. was represented by its attorney, David Rosenthal, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Ted’s Discount Blinds, L.L.C. (“Respondent”) is the holder of License No. 218144, a Class C-65R contracting license issued by the Registrar of Contractors (“Registrar”). 2. On August 25, 2009, Chris and Lori Buls (“Complainants”) filed a written Complaint with the Registrar alleging the following Complaint item against Respondent, who had supplied and installed plantation shutters in Complainants’ residence: “Blinds through out [sic] the house are turning yellow.” The Complaint listed the following resolution being sought by Complainants: “Sand, prime and repaint shutters.” 3. The Registrar designated Complainants’ Complaint as Case 10-0824. 4. The Registrar issued a Citation and Complaint in Case No.10-0824 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (15), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 5. The Registrar forwarded Case No. 10-0824 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. It is not disputed that Complainants’ plantation shutters delivered and installed by Respondent have turned yellow in color. The dispute centers on whether Respondent is responsible for the shutters turning yellow. 7. Respondent entered into a subcontract with Five Star Shutters for manufacturing Complainants’ shutters. Five Star Shutters subsequently went bankrupt and out of business. 8. In June 2009, Complainants contacted Respondent about the shutters turning yellow. In July 2009, Respondent performed a jobsite visit to investigate the condition of the shutters. Complainants permitted Respondent to remove one shutter for testing. 9. The Registrar’s assigned inspector, Jim Dimond, testified at the hearing that he observed yellowing on numerous shutters in erratic patterns throughout Complainants’ residence. Inspector Dimond stated that the shutters in the shade areas of the residence had more yellowing. 10. Inspector Dimond recommended the closing of Case No. 10-0824. He also suggested that Respondent return the shutter removed for testing. 11. Inspector Dimond opined that the yellowing of the shutters was not a workmanship issue. He did not know the cause of the yellowing. Respondent demonstrated to Inspector Dimond that the yellowing could be removed from the shutters with moderate effort using furniture polish and tissues. 12. Complainants introduced into evidence an email dated April 7, 2010 from Craig Connor of Desert Hills Shutters. Mr. Connor, who did not testify at the hearing, wrote the following: …I looked at the shutters in Mr[.] & Mrs[.] Bulls shutters [sic] on 3-5-2010 and it appears that they have a yellow tinge either coming thru or on the finish. I recommended that the customer start in a small area and wipe the shutters down with a little bit of rubbing alcohol to see if they could extract the yellow tinge from the shutters. I explained that by using rubbing alcohol in a small area it will not harm the finish and I recommended that if that worked they may be able to wipe all of the shutters down with the rubbing alcohol and get rid or [sic] the yellow tinge and then we could repaint them if necessary. The customer called me back about a week later to inform me [sic] that the yellow tinge will come off with the alcohol but it appears to come back right away. Given this result, it [sic] is my opinion that the yellow is coming thru the finish and is not caused by something on the top of the finish. I recommended that the customer have the manufacturer or another company replace the shutters in their home rather than refinish due to the yellowing will most likely come thru the new finish if the product is repainted…

13. Respondent took the shutter removed from Complainants’ residence to SEMTEC Laboratories, Inc. for testing. 14. Ed Holdsworth, a chemist at SEMTEC Laboratories, Inc., performed testing of the shutter. 15. After testing, SEMTEC Laboratories, Inc. prepared a written report dated December 3, 2009, entitled “EXAMINATION OF WOODEN SHUTTERS Yellowing of Original Off-White Finish” (“SEMTEC Report”). 16. The SEMTEC Report contained the following Conclusions: The yellow coloration on the subject shutter does not derive from the wood base, the primer layers nor the finish paint coating.

The yellow color is due to the presence of a dye on the surface and near surface of the finish paint coating. It arrived after the shutter was constructed.

The dye can be successfully removed with IPA (iso-propyl alcohol) but the finish paint surface is slightly damaged in the process. Water and dishwashing detergent is moderately successful in removal of the majority of the stain and the finish paint surface remains is [sic] good condition.

The most likely source of the yellow dye is a cleaning liquid that has been dyed yellow. Of special concern are “knock-off” products that look like established products but are not. An anecdotal report was received (cleaning company for SEMTEC) that such a product was encountered on the market that did produce yellow stains on cleaned materials. The inferior product had been obtained at a Dollar Store.

17. Mr. Holdsworth gave testimony at the hearing consistent with the SEMTEC report. 18. Complainants deny that either they or their house cleaner used any improper cleaning products on their shutters. 19. Randy McDaniel is a vice president for Frazee Paint and Wallcovering (“Frazee”), a supplier of paint. Respondent contacted Frazee during its investigation of the shutter issue. 20. Mr. McDaniel was present for a jobsite inspection at Complainants’ residence on September 14, 2009. During that inspection, Mr. McDaniel observed inconsistent patterns of yellowing on Complainants’ shutters. He opined that those conditions were not typical of a paint defect. 21. Mr. McDaniel was one of four employees who, as a team, investigated the yellow discoloration of the shutters. After the Frazee team concluded its investigation, Mr. McDaniel authored a report that outlined the following findings made by the Frazee team: Observations and conclusions: 1) Five Star Shutters purchased materials from Frazee Paint in 2007[.] 2) Unable to confirm actual material used on shutters in question[.] 3) Five Star Shutters records were not observed based on the operation being closed[.] 4) Material used was likely product number 731 White Semi-gloss Laquer[.] 5) Examination of shutters confirmed presence of primer – most likely Ultra prime supplied as factory prime from Millwork by O’Hair based on purchase pattern trail for Five Star. 6) YELLOWING COULD BE OBSERVED IN AN INCONSISTENT PATTERN AND IS NOT MORE SEVERE IN MORE DIRECT SUN SUCH AS WESTERN EXPOSURE. 7) YELLOWING COULD BE EASILY REMOVED WITH PETROLEUM TYPE CLEANERS/POLISH. 8) CLEANED SURFACES EXHIBITED ORIGINAL COLOR; INDICATING PROBLEM IS ON SURFACE ONLY. 9) Formula cards on file for all Five Star colors indicate that colorants were all within Frazee Quality Control tint procedures. 10) Frazee sold several hundred gallons of this same basic product in Arizona during 2007 and have received ZERO complaints from other customers. 11) Homeowner cleaning procedures would still be candidate for the observed surface defect – we do not have enough information to make that our final conclusion. Recommendation: Frazee Paint suggests that a simple shutter cleaning procedure be employed as corrective action.

(Emphasis in the original).

22. Mr. McDaniel testified that he cannot identify the actual cause of the yellowing of Complainants’ shutters. 23. Ted Leonard, Respondent’s member and qualifying party, admitted that Respondent retained the shutter taken from Complainants’ residence for the hearing in this matter. Notwithstanding that Inspector Dimond suggested that Respondent return the single shutter, any dispute about the failure to return that shutter is outside the scope of the instant hearing. Complainants did not raise that issue in their Complaint.[1] 24. Complainants did not address the charged violations that Respondent contracted in a name other than as set forth upon its contracting license or that Respondent failed to properly list its contracting license number as required by statute. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. 3. Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-109, as charged in the Citation and Complaint issued by the Registrar. Complainants failed to establish that the yellowing of their shutters resulted from poor workmanship by Respondent. 4. Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (15) and (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. Complainants failed to address these issues at the hearing. RECOMMENDED ORDER The Citation and Complaint in Case No.10-0824 shall be dismissed on the effective date of the Order entered in this matter. In the event of certification of the 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, May 3, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This Findings of Fact does not preclude Complainants from raising the issue of the retained shutter in another timely filed complaint.

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