ALJDEC decisions subject to certification as final
2017A-3899-CHC-ROC · Registrar of Contractors · 2018-03-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shelley Marie Ritter,
COMPLAINANT,
v.
Rapid Blinds & Shutters LLC ,
License No: 168592
RESPONDENT.
No. 2017A-3899-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 6, 2018
APPEARANCES: Matt Ritter and Mary Ritter, Complainants; Dan Cole,
Respondent; Gary Smith, Respondent’s attorney. Eric Barna, Respondent’s
witness; Steven Lawton, Registrar of Contractors Investigator.
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
_____________________________________________________________________
FINDINGS OF FACT
Respondent Rapid Blinds & Shutters LLC, (Respondent), is the holder of License Number 168592 issued by the Arizona Registrar of Contractors (ROC).
On or about April 14, 2017, Shelley Marie Ritter (Complainant) entered into a contract with Respondent to install custom sized interior shutters in the Respondent’s residence windows.
On or about July 31, 2017, the Registrar received a complaint against Respondent from Complainant alleging Respondent performed poor work in that trim around some of the windows was not square and that significant reveal around the shutters allow light to shine through.
The Registrar assigned the complaint to ROC Investigator Stephen Lawton. On or about September 29, 2017, Investigator Lawton conducted a formal job site inspection at the Complainant’s residence. The Complainant and representatives from the Respondent were present for this inspection. Inspector Lawton reports in his jobsite inspection notes that
Complaint item 1: A jobsite inspection was performed with all parties present. Complainant alleges that the Respondent performed poor workmanship on the installation of shutters order by Complainant. 3/16th of inch between trim and shutter doors/loovers[sic]. Substantiated and the shutters were manufactured by others. Appears to be the product which was picked by the Complainant.
Complaint item 2: Trim not installed square....It was observed that the upper trim was adjusted to keep light out per the Respondent at the Complainant’s request. Cannot substantiate whether the Complainant requested the adjustment or not. It was observed that the top of the trim (casing) was not square....Workmanship Rule: A.R.S. 32-1154(A)(3) Namely R49-108.
On October 13, 2017, after the formal jobsite inspection, Investigator Lawton issued a written directive to Respondent that contained a corrective work order [CWO] as follows:
You are hereby directed to remedy the following violations by the appropriate means: Trim not installed square and reveal between trim and doors are not consistent.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 10/31/2017.... The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
Following the issuance of the CWO, a compliance inspection was conducted December 13, 2017. Mr. Lawton’s Compliance Jobsite General Notes indicate:
Compliance Findings: Trim not installed square and reveal between trim and doors are not consistent. It was determined that at the time of compliance inspection that three window[sic] with shutters did not meet the workmanship standards of the ROC, where as the shutter doors should have been 1/8 inch clearance all around the door. The following windows do not meet the standards. Middle bedroom, family room and front window at dining area.
On December 21, 2017, the ROC issued a citation against Respondent, charging possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and charging A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action).
A hearing was timely requested along with the Respondent’s answer in this matter. Hearing was conducted on the matters contained in the citation held on March 6, 2018.
Investigator Lawton testified consistent with his Jobsite Inspection Notes and his Compliance Inspection Notes that trim was not installed square and the reveal between the trim and the doors were not consistent. At the time of compliance inspection, three windows with shutters did not meet the workmanship standards of the ROC, in that the shutter doors should have had a 1/8th inch clearance all around the doors. Three windows were identified as being below ROC standards: the middle bedroom, the family room and the front window at the dining area.
On cross-examination by the Respondent, Mr. Lawton maintained that a shutter is the same to him as a door in that a shutter opens and closes an opening and it has hinges. Therefore, he testified, the ROC Standards of Workmanship for a shutter is the same workmanship standard as for those of a door. Mr. Lawton agreed that the workmanship standards he applied for the shutters in this case are the standards required by ROC “Finnish Carpentry” “Acceptable Tolerances [AT]” for doors - in that doors require clearance of 1/8 inch at the top and sides.
Complainant’s spouse, Matt Ritter, testified that he is a carpenter by trade and has hung thousands of doors. There was no testimony that Mr. Ritter had ever installed or has ever been trained to install shutters. He testified that the Respondent’s shutter installation left gaps on the shutters which showed light through and that the gaps vary inconsistently. Mr. Ritter said that the Respondent, after the Complaint was filed, came back to the jobsite, hammered the trim down with nails and indicated to the Complainant that the issue required a “factory fix” and was not a workmanship issue of the Respondent.
Dan Cole, Qualifying Member and President of the Respondent L.L.C., testified that the shutters were purchased by the Complainant through the Respondent. Mr. Cole indicated the shutters were manufactured by Norman Shades of Livermore, California for the Respondent who sold them to the Complainant and then the Complainant installed the shutters.
Mr. Cole testified that on or about April 10, 2017, the Respondent received a telephone call from Mrs. Shelley Ritter [Complainant herein] requesting an estimate for shutters on her home. On April 14, 2017, Eric Barma, a salesman for the Respondent company, went to the Complainant’s residence and conducted his estimate for the proposed project. The salesman conducted measurements for the purchase, fabrication and installation of the Complainant’s shutters and entered into a contract with Mrs. Ritter for the sale and installation of her shutters.
Mr. Cole indicated that Norman Windows of Livermore, California, under a contract with the Respondent’s company, is the manufacturer of the shutters installed in the Complainant’s residence. [See, Exhibit R-4]. The shutters purchased and installed for the Complainant were not a retail, standardized product but, rather, the shutters were ‘custom made” according to specific measurements, color, product type and design. The shutters provided to the Complainant were a “one-of-a-kind” manufactured product created to fit only this particular customer’s design and measurements. Mr. Cole pointed out, referring to page two of Exhibit R-4, that his company’s Shutter orders are made in bulk monthly to Norman Windows by the Respondent. He testified that Exhibit R-4 reflects 32 orders made to Norman Windows - which order includes the Complainant’s order at item 24. He said that Respondent received no complaints about installation or product manufacturing from any of the other 31 customers whose product manufacturing was ordered on the manufacturing cycle as the Complainants.
Referring to the contract attached to the Complainant’s complaint the following conditions and exclusions language is provided:
This Contract is subject to all terms and conditions on both the front and the back of this document....
1. Acceptance of Order: All orders are custom made to fit the customers’ windows only....
4. Customer accepts this contract and the products deriving therefore subject to the following conditions about window\tv coverings (a) Wood Blinds & Shutters – Wood, even if treated, is still subject to natural variation and imperfection. Even a smooth wood treatment may still have slight mill, seam or grain marks and may not be perfectly smooth. (b) Wood movement - Not every slat on every window treatment will be identical. Wood window treatments carry all the naturally occurring characteristics of wood. Wood window treatments may have variations in color, grain, texture and warpage that are natural inherent characteristics of wood window treatments...(e) Warpage/Slat Tightness - With any window treatment, they are not designed to be completely light tight. It is impossible to have every gap, space and margin an absolute uniform dimension. Light may come through these spaces and may not filter uniformly. This is most noticeable on windows exposed to direct sunlight and/or windows out of square and/or windows out of square. PVC louvers will slightly camber with the heat and relax when it cools down. Shutters may require adjustment to tilt rod and/or louvers in more than one location. Slight warping is considered acceptable within industry standards. These characteristics apply to all window treatments, horizontal and vertical. (f) Factory deductions/operating clearances - While window treatments are meant to reduce light and provide privacy there will be a light gap (halo) around the treatment. This gap is a factory allowance that all treatments must have to ensure proper operation and will vary in size depending on the mount and type of the treatment. This is most noticeable on windows exposed to direct sunlight and/or windows out of square....
6. Rapid Blinds & Shutters LLC offers no warranty on equipment or materials. Warranties on materials and/ or equipment are manufacturer's warranty only. Materials, and/ or equipment warranty claims are to be pursued by Customer, not Rapid Blinds & Shutters LLC. Any applicable warranties are to the original purchaser only and are non-transferable. All warranty claims will require a photo of any claimed damage/defect. In the event of Customer's exercise of manufacturer's warranty, Customer is responsible for returning the product to either Rapid Blinds & Shutters LLC or to the manufacturer depending upon the manufacturer's decision. Warranty does not cover shipping, labor for measuring, removing product or re-installing product. Any wall damage resulting from the removal of product is the customer’s responsibility to repair. [Emphasis added].
Mr. Cole, referring to “Insp. Correspondence from Resp1.pdf”, the manufacturer representative, General Manager Stephan Prylis, responded to inquiries from the Respondent regarding the Complainant’s matter by an undated letter stating the manufacture’s specifications, tolerances and limitations:
I received your request for the specification you need. As far as the gap or the margin between the panels and the frame it is .150, with a tolerance of +/-.080. However, this margin will vary and may not be consistent, even within the same side of a frame. This is a clearance issue that is required on every shutter but we cannot guarantee an exact size.
Although we build and inspect our shutters to be square with consistent reveals (gaps) in our factory; imperfections in framing and drywall construction affect the square, plumb and reveals of the finished installation when it is affixed to walls. This is more noticeable on larger shutters over 15 square feet.
Considering all of these variables, as long as any side of a shutter has a gap between .070 and .230 it is still considered within spec even if that gap varies across the same side of the shutter.
Mr. Cole testified, and in the Respondent’s answer stated, that the window treatments at issue were initially installed in accordance with manufacturer’s specifications.
On June 23, 2017, when the shutters installation had had been completed, Complainant Shelley Ritter signed off on the Respondent’s Installation Survey [Exhibit R-6] signifying that she inspected the Respondent’s work, that the overall performance of the Respondent was excellent and certifying that “...all work was completed to my satisfaction...”
Mr. Cole stated that on June 26, 2017- three days after the completion of the install of Complainant’s shutters - the company received a telephone call from the Complainant that there were gaps and that she was unhappy with the shutter installation. Mr. Cole stated that the Complainant complained that the shutters had too much gap and sent a picture. Complainant’s picture was forwarded to the manufacture’s production representative.
On July 4, 2017, Manufacturer’s Production confirmed shutters were made correctly and the sizes were cut properly. We requested some extra hardware to have on hand to do a field inspection. Parts are not kept in stock in our Phoenix warehouse so we had to special order them for the Complainant. Mr. Cole indicated that the Complainant wanted to alter the way Respondent makes the shutters and that they wanted to match another company's shutters that they saw somewhere else since the time they ordered. Respondent said we cannot do that. Complainant was shown a sample at time of measure and that is what was delivered.
Mr. Cole testified that after installation was completed, the Complainant requested that Respondent alter its work by removing and re-positioning the mounting of certain of the window treatments. Complainant insisted the window treatment mountings be altered because the hardware recommended by the manufacture needed to be thinner to close light gaps around the shutters. Through the Complainant’s carpenter husband, the Complainant gave very specific instructions on how the Complainant required the window treatments to be mounted. Respondent returned to the residence, and - at no charge - remounted the window treatments as the Complainant had demanded.
Following the free re-installation of several shutters, Complainant insisted that Respondent return again to undo the changes that had been made at Complainant’s insistence and demanded the re-remounting of the window treatments back to where Respondent had mounted them in the first place. At present time, Respondent asserts, the window treatments are mounted per manufacturer’s specifications and are installed correctly.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).
Respondent was charged in the ROC citation that it did not perform the shutter installation in this case in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
A.C.C. RULE 4-9-108 WORKMANSHIP STANDARDS provides
A. A contractor shall perform all work in a professional and workmanlike manner.
B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.
C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards. [Emphasis added].
Because of the conditions and exclusions contained in the Complainant’s Contract with the Respondent, a preponderance of the evidence shows the Complainant had reasonable notice and knew or should have known that shutters are
not designed to be completely light tight. It is impossible to have every gap, space and margin an absolute uniform dimension. Light may come through these spaces and may not filter uniformly” and that “there will be a light gap (halo) around the treatment. This gap is a factory allowance that all treatments must have to ensure proper operation.
Moreover, Complainant is similarly on notice by the contents of the contract in this case and knew or should have known that, other than the statutory 2 year ROC warranty of good workmanship on the installation of the shutters, the only warranty extended to the Complainant for the shutters was from the manufactuer alone.
By a preponderance of the evidence, the contentions of the Complainant and the facts entered in evidence raise manufacture design or defect issues. This is not a contractor poor workmanship case. Complainant still has its remedy through the manufacturer’s warranty of the product assuming they are still within the warranty period.
By a preponderance of the evidence, the contention of Inspector Lawton that shutters are not actually shutters, they are doors is unconvincing. Thus, application of standards required by ROC “Finnish Carpentry” “Acceptable Tolerances [AT]” for doors requiring a clearance of 1/8 inch at the top and sides is inapplicable in this case to establish whether the Respondent failed perform work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
There exists no specific provisions in ROC Workmanship Standards for the installation of shutters. Moreover, no county, city, or town has adopted building codes specifically dictating standards for the installation shutters nor do any adopted building codes contain specific provisions applicable the installation of shutters. Thus, pursuant to A.C.C. RULE 4-9-108(B) and (C), Respondent’s “work shall be performed in accordance with professional industry standards.”
By a preponderance of the evidence it is demonstrated that the installation of the shutters by Respondent conforms to and is accordance with professional industry standards as stated by the manufacturer. [See, Insp. Correspondence from Resp1.pdf”
As to the issue of poor workmanship, the evidence established by a preponderance that Complainant failed to meet its burden of proof to establish that Respondent failed to perform work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
Inasmuch as the Complainant has failed to establish Respondent failed to perform work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3), then by a preponderance of the evidence Complainant has failed to establish Respondent A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Shelley Marie Ritter and that this matter be remanded to the Arizona Registrar of Contractors for such further action as may be necessary and proper.
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, March 21, 2018
/s/ Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
By: