ALJDEC decisions subject to certification as final

2010A-28167671-ROC · Registrar of Contractors · 2010-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through his attorney, Robert Porter. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent’s Class B- License (License No. B.101581-R) was placed on disciplinary license probation on July 12, 2010 by the Registrar of Contractors. 2. There was no dispute that the Complainant purchased the residence located at 8646 E. Tecolote Circle, Scottsdale, Arizona from the Respondent on June 18, 2008. 3. Undisputed credible testimony and evidence established that shortly after occupying the residence, the Complainant discovered that several windows in the residence were leaking and allowing moisture into the residence. 4. The Complainant notified the Respondent and Milgard, the manufacturer of the windows, of the problems with the windows and scheduled an onsite inspection with the manufacturer of the windows. 5. Undisputed credible testimony and evidence established that the window manufacturer’s representative was present for the scheduled onsite inspection and visually inspected the Milgard windows that were installed in the Complainant’s residence and provided the Complainant with a written report (Exhibit No. AA) via email of the results of the representative’s onsite inspection. 6. The manufacturer’s email report provides, in relevant part, as follows: During my inspection it was noted that multiple base boards had swollen and were still visibly damaged and many of the tracks had over flowed. My first concern was to see why the windows had not drained through the weep system as they were designed to. I inspected the exterior of the home to ensure the weep hole covers were clear and functioning properly. After my visual inspection I determined they were not. All of the weep holes that I inspected were either caulked, painted, or had stucco covering them. Some had a combination of the three conditions. This does not allow the windows to weep water as they are designed to. This could cause tracks to fill and over flow into the home. This could also cause the seals to fail in the glass. My inspection then took me into the inside of the home where I noticed that alarm sensors [sic] drilled into the sills of the windows. As I explained on the phone, drilling into the sill of the window voids the Milgard warranty. The sill is an important part of the weep system of very Milgard window. Penetrating the sill can cause water that is supposed to weep to the exterior, to drain into the walls of the home. Compounding this issue even further would be your blocked weep holes [sic] not allow any water to drain out freely. You appear to have base board damage below all windows with alarm contacts in the sills. 7. The Complainant notified the Respondent of the results of the manufacturer’s inspection and demanded that the Respondent properly correct the problems with the windows in the Complainant’s residence. 8. When the Respondent refused to properly correct the problems with the leaking windows, the Complainant filed a complaint against the Respondent with the Registrar of Contractors. 9. The Respondent filed a letter in response to the complaint stating that the Respondent had sold the Complainant the personal residence of the Respondent’s owner, that the residence had been completed and occupied by the Respondent’s owner on July 31, 2006, and that the matter was beyond the jurisdiction of the Registrar of Contractors. 10. The assigned Agency Inspector then reviewed the matter and on March 23, 2010, issued a letter to the Complainant which provides, in relevant part, as follows: A letter was received from the Respondent stating this house was previously occupied prior to the sale to you. The Registrar of Contractors has a two year jurisdiction which would have started when Mr. Stallone occupied this house. Based on the above, a citation will not be issued against the contractor at this time. However, you may request in writing, a further review of your complaint. If you have additional information to support your complaint, you should submit it with your request for review. After such review, a determination will be made on whether a citation should be issued. 11. On March 30, 2010, the Complainant filed additional information regarding his complaint ,and a formal Complaint and Citation was issued against the Respondent. 12. The assigned Agency Inspector testified that he would have issued a Corrective Work Order directing the Respondent to take appropriate corrective action on the windows but had received insufficient information to resolve the issue regarding whether the matter was within the two year jurisdiction of the Registrar of Contractors. 13. Undisputed testimony and evidence established that when the Complainant closed escrow on his new home on June 18, 2008, the Respondent stated that the residence had been utilized by the Respondent as a model home and that no one had ever lived in the residence. 14. Undisputed credible testimony and evidence established that the appliances in the residence had never been used, that many of the appliances still had the original packing and paperwork inside them, and that the washer and dryer had never been hooked up. 15. The Complainant’s neighbor, Ms. T. Paterson, testified that she lived next to the residence located at 8646E. Tecolote Circle, Scottsdale Arizona, both before and after the Complainant purchased the residence. 16. Ms. T. Paterson testified that the Complainant’s residence had been utilized as a model home by the Respondent and that no one had lived in the residence before the Complainant purchased and occupied the residence. 17. Undisputed evidence established that Respondent’s address of record for both the Corporation Commission and the Registrar of Contractors was, and is, an address other than the residence located at 8646 E. Tecolote Circle, Scottsdale, Arizona. 18. Undisputed testimony and evidence established that the Complaint at issue was filed on within two years of the Complainant’s purchase and occupancy of the residence at issue. 19. Undisputed credible testimony and evidence established that the Respondent improperly covered the weep holes on the exterior of the Milgard windows with caulking and stucco and paint. 20. Undisputed credible testimony and evidence established that one of the Respondent’s subcontractors improperly drilled holes for the security sensors in the interior sills of the Milgard windows. 21. Undisputed credible testimony and evidence established that the covering of the weep holes in the exterior of the Milgard windows and the drilling of holes in the sills of the interior of the Milgard windows violated the manufacturer’s recommendations and that the manufacturer has voided the manufacturer’s lifetime warranty for the Complainant’s windows based upon the Respondent’s failure to comply with the manufacturer’s installation instructions. 22. Undisputed credible testimony and evidence established that the Respondent’s actions in covering the weep holes in the exterior of the Milgard windows violated applicable workmanship and industry standards. 23. Undisputed credible testimony and evidence established that the Respondent’s actions in drilling holes through the interior of the Milgard window sills violated applicable workmanship and industry standards. 24. Undisputed credible testimony and evidence established that that the Respondent’s actions, in covering the weep holes on the exterior of the Milgard windows and in drilling holes through the interior window sills of the Milgard windows in the Complainant’s residence, have caused the windows in the Complainant’s residence to fail and that the failure of the windows has caused a significant amount of moisture damage to occur in the interior of the Complainant’s residence. 25. Undisputed credible testimony and evidence supports a finding that the complaint at issue was filed with the Registrar of Contractors within two years of the Complainant’s purchase and occupation of the residence located at 8646 E. Tecolote Circle, Scottsdale, Arizona. 26. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. Undisputed credible testimony and evidence supported findings that establish violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (3) namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s Class B- License be revoked on the effective date of this Order. 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 the certification. Done this day, September 21, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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