ALJDEC decisions subject to certification as final

2017A-1667-CHC-ROC · Registrar of Contractors · 2017-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christopher Brian Chambers,

COMPLAINANT,

v.

Weathersby Windows & Doors LLC,

License No:

284119

RESPONDENT.

No. 2017A-1667-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 10, 2017

APPEARANCES: Christopher Chambers, Complainant; Darrin and Diana Weathersby for Respondent; Steve Klein, Registrar of Contractors Investigator

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

After filing a complaint against Respondent with the Registrar of Contractors, Complainant failed to establish a violation. Therefore, it is recommended that the complaint and the Citation issued by the Registrar be dismissed in their entirety.

FINDINGS OF FACT

Complainant and Respondent contracted for the installation of new windows on Complainant’s existing home. Complainant filed a complaint with the Registrar of Contractors alleging that the installation did not meet local and national code requirements or the manufacturer’s instructions.

Steve Klein, a Registrar of Contractors Investigator, conducted an investigation and decided that the best way to determine whether the building codes were violated was to instruct Complainant to contact the local building department and get an inspection. He issued a Directive from the Registrar on May 2, 2017 instructing Respondent to complete the installation per the contract, manufacturer’s instructions and building codes.

At hearing, Investigator Klein stated that the manufacturer specifications called for fins to be installed with flashing. He acknowledged that the Registrar of Contractors may accept “field modifications” where necessary for the project even if they don’t meet manufacturer specifications or code, but, he stated, he was unable to determine if a field modification was necessary in this case. He stated that if Respondent did perform the alterations as provided for in the manufacturer’s specifications, it would require more stucco to be removed to make room for the hard flashing.

Investigator KIein stated that he would find the installation to be acceptable if the manufacture approved it. When asked about the manufacturer’s statement that it would approve the installation so long as there are no leaks, he stated that he would rely on the local building inspector to determine if there were leaks. He noted that the parties did not dispute the fact that the method of installation involved using screws to anchor the windows and foam caulk to seal the opening.

Mark A. Dorman, City of Chandler Building Inspector, conducted an inspection on June 1, 2017 without Respondent present and issued a fail report. On May 12, 2017, the manufacturer issued an email to Respondent stating that it has reviewed and approved the installation method so long as it does not leak or put unnecessary stress on the products. This email was provided to Investigator Dorman on August 7, 2017. That same day, Inspector Dorman emailed Respondent stating that “as long as the installation is weather-tight, and structurally sound,” he would accept it. He did not conduct an inspection to determine whether the windows leaked.

Complainant argued that the installation does not meet building codes, but he did not offer any evidence that the installation was not structurally sound or that any of the windows are not weather-tight in any way. He stated his concern that the installation would not last, but he offered no evidence of any reason to find that it would not last. He stated that he saw some moisture on the inside of the window sills, but this was during the installation, not after it was completed and there is no reason to suspect that the moisture infiltrated the home after the windows were caulked. The fact that the windows were not the same installation as the manufacturer’s instructions or building codes does not, per se, establish that the installation was incorrect.

Respondent’s owner, Darrin Weathersby, testified that he was willing to make alterations to the project wherever appropriate but Complainant’s idea of how to do it would have ruined the windows and risked more problems. He wanted to ensure that any alterations he made would be acceptable to the owner and the Registrar of Contractors but he could not get to an agreement on the method. He made it very clear that he is willing to do whatever is necessary but wants to be sure that the method is approved before undertaking the changes or risking the quality of the installation.

Regarding the current installation, he did not dispute that the current installation is not the same as the manufacturer’s instructions or the building codes. However, he said that the manufacturer’s instructions and codes are more appropriate for an initial installation as the home is being constructed are not the appropriate method for a remodel or for Complainant’s home.

The manufacturer’s instructions and code provide for installing “fins” and sill pans; however, during demolition of the old windows, Respondent found that there never were any fins or sill pans on the windows. He said this is common in the southern part of the country where climates are warmer and where so many homes are built with block frames, such as Complainant’s. Not only is the fin construction not appropriate for block frames and remodels, but Complainant had wanted to minimize stucco damage during installation because the cost of repairing the stucco damaged during installation was Complainant’s responsibility and would have increased the cost of the installation.

Complainant also wanted to minimize drywall damage but maximize the size of the windows and had agreed to the current install method as a means of obtaining his ends. Mr. Weathersby noted that the contract calls for a block installation rather than a fin installation, so it is clear from the undisputed evidence that if Respondent had installed a fin installation, it would have been a violation of the contract.

Mr. Weathersby testified that his company will do a fin installation if hired to do so, but most people do not want it because the cost is significantly higher.

Mr. Weathersby expressed frustration with getting Inspector Dobson to test the windows for leaks, but he testified as to the numerous installations of the same type that he has done over the years and the fact that the method has held up to the test of time such that he is confident that the windows will not leak.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108) and (22).

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108.

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time.

The Citation did not cite Respondent with any potential violation of A.R.S. 32-1154(A)(2), which provides for disciplinary action for the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [Emphasis added.]

In this case, Complainant has not established that Respondent violated A.R.S. § 32-1154(A)(2), (3) or (22).

Complainant did not establish a violation of A.R.S. § 32-1154(A)(2) or that the Citation should have included a potential violation of that portion of the statute because he did not offer any evidence that the departure from the manufacturer’s specifications and/or building codes was prejudicial to him and he did not establish that he did not approve of the installation method. As Complainant has the burden of proof, it was his responsibility to bring forth this evidence if it existed. Instead, he offered his opinion on the proper method of installation and information regarding what the building codes and manufacturer’s instructions say. As noted in the wording of A.R.S. § 32-1154(A)(2), this is insufficient to establish a violation.

Complainant did not establish a violation of A.R.S. § 32-1154(A)(3) for essentially the same reasons that he did not establish a violation of A.R.S. § 32-1154(A)(2). He offered no basis for finding that the installation, while not the same as provided in the building codes or manufacturing instructions, was not sufficient. Construction work, such as that at issue herein, is not a perfect science. As such, field alterations may be necessary to meet the needs of the customer or to adjust to the unique conditions of the jobsite. The fact that the construction method was not the same as a code or a manufacturer’s instruction does not, in itself, establish that the workmanship was inadequate. In fact, there may be times when following codes or instructions would be detrimental to the final product. Likewise, Complainant’s expression of anxiety over whether the installation would stand the test of time was not evidence and cannot be considered an appropriate basis for finding a violation. Complainant has the burden of establishing a violation, so his expression of uncertainty not only fails to show a violation, it indicates that Complainant had no evidence that the installation was inadequate other than his personal insecurity about how it was done. If Complainant was concerned that the windows would leak, it was his responsibility to have them tested and to provide evidence of the results. The fact that Inspector Dorman declined to perform the test for him does not change the requirement that Complainant meet his burden of proof.

Finally, Complainant failed to establish a violation of A.R.S. § 32-1154(A)(22) because the evidence at hearing established that it was not necessary or appropriate for Respondent to undertake any modification of the installation. The basis of the May 2, 2017 Directive from the Registrar having been laid to rest, no violation of A.R.S. § 32-1154(A)(22) could be established.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in this matter and the Citation issued by the Registrar of Contractors be dismissed in their entirety.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be five days from the date of certification.

Done this day, August 23, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors