ALJDEC decisions subject to certification as final

2020A-00783-CHC-ROC · Registrar of Contractors · 2020-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Larson,

COMPLAINANT,

v.

Window Products Inc.,

dba Cascade Windows,

ROC License No. 293265,

RESPONDENT.

No. 2020A-00783-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 25, 2020 at 9:00 AM.

APPEARANCES: James Larson (“Complainant”) appeared telephonically on his own behalf with Jack Grimm as a witness. Timothy Bonnaville appeared telephonically on behalf of Window Products Inc. (“Respondent”). Chris Anton, Rob Daiker, and Ladd Perry observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On June 27, 2014, the Registrar issued License No. 293265 for Specialty Dual CR-65 Glazing contracting to Respondent. Respondent’s address of record for the license is 10507 E. Montgomery Dr. Spokane Valley, WA 99206-4280. Ladd Reid Parry is listed on the license as the Qualifying Party. Lucas Todd Cutler, Randal Own Emerson, and William Jeffery Helenberg are also listed on the license as Directors and/or Officers.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 293265, as reflected on the Registrar’s public website on September 25, 2020. Such prior license record reflects that Respondent’s license is active and currently renewed through June 30, 2022. The license has not been previously disciplined, however, the record reflects that one prior complaint has been settled or otherwise resolved with the license. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a $7,500.00 surety bond for the license issued through Travelers Casualty and Surety Company of America, effective June 16, 2014.

On February 13, 2020, the Registrar received a complaint filed by Complainant alleging abandonment of a window and door installation project. Attached to the complaint was a copy of a $4,822.73 payment issued to Respondent on December 05, 2019, for the project.

On April 07, 2020, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on April 21, 2020, at 10:00 a.m.

On April 21, 2020, Registrar investigator Jack Grimm (“Investigator Grimm”) inspected the work that had been done on the project to date and took 7 photographs of the project. When he was finished, Investigator Grimm drafted Jobsite Inspection Notes. Ultimately, Investigator Grimm substantiated 5 of Complainant’s 7 complaint items.

Specifically, Investigator Grimm concluded that complaint items 1-3 and 6-7 required remediation for poor workmanship.

On April 30, 2020, Investigator Grimm issued a Directive from the Registrar to Respondent because he determined that the work Respondent had done on the project failed to meet minimum workmanship standards. Respondent was put on notice that he had until 5:00 p.m. on May 28, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On June 09, 2020, Investigator Grimm escalated Complaint No. 2020-00783 to the Registrar’s legal department with citation recommendations.

On June 11, 2020, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until June 26, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On June 10, 2020, the Registrar received Respondent’s Answer whereby Respondent asserted, in pertinent part, that “All items have been completed with the exception of #6. Respondent also noted that “We are happy to try again to replace all 4 panels, but this will be the last attempt as we cannot control the coating that the glass manufacturer applies. This glass was selected by [Complainant] and it is not something that we even carry or provide out of the Phoenix facility. If continuation of doing these things over and over will not satisfy the complaint, we (according to our warrant) would elect to refund the original purchase price of the door and call this complaint closed.”

On June 19, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on August 12, 2020. Per the July 13, 2020, Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Charge 2: A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”).

Hearing Evidence

Complainant testified on his own behalf, called Investigator Grimm as a witness, and submitted 14 exhibits. Timothy Bonnaville - Chief Operating Officer testified on behalf of Respondent. The Registrar’s agency file and Notice of Hearing were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant owns residential property located at 5817 N. Canyon Dr. Phoenix, AZ 85016.

On an unknown date Complainant entered into an addition contract agreement with Gorilla Builders. Gorilla Builders subcontracted out the window and door portion of the project to Respondent, in part, because Respondent had performed similar work on Complainant’s home when he had it built.

Respondent was brought on as a subcontractor, in large part, because of its familiarity with the products used on Complainant’s previous new build project.

The manufacturer who created the windows Complainant wanted to use for the addition project went out of business after the Complainant’s home was built.

No other manufacturer made the exact windows Complainant wanted for his project.

Complainant was given similar window samples by Gorilla Builders and chose the window sample he believed came closest to the existing windows on his home.

Once the new windows were installed Complainant was not satisfied because they let in approximately 12% more light than his existing windows.

Respondent did not have any authority or control over the level of reflectivity or tint the glass coater used for Complainant’s windows.

It is possible for windows to have color variations.

Complainant initially submitted 6 complaint items in Complaint 2020-00783.

On April 05, 2020, Complainant submitted a complaint addendum whereby he alleged 1 additional complaint item. The complaint item was added as #7 to the complaint.

On June 03, 2020, Investigator Grimm issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on June 04, 2020, at 1:30 p.m.

On June 04, 2020, Investigator Grimm inspected Respondent’s remediation work on the project. When he was finished, Investigator Grimm drafted Compliance Jobsite Inspection Notes. Ultimately, Investigator Grimm determined that Respondent had satisfactorily remediated complaint items 1, 3, and 7, but concluded that Respondent failed to appropriately perform repairs necessary to satisfactorily remediate complaint items 2 (i.e. “adjust sliding door panels for configuration, alignment, and proper fit”) and 6 (i.e. “mismatched window pane”) to the Registrar’s minimum standards.

The parties did not enter into a settlement agreement on or before May 28, 2020.

On July 13, 2020, Respondent delivered 4 new sliding door panels to the project site to remediate complaint item 2, but Complainant refused to grant access to Respondent.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

The material facts in this case are clear.

It is undisputed that Complainant did not have a contract with Respondent, but that Respondent was hired by Complainant’s general contractor as a subcontractor for a residential project at Complainant’s home. To that end, there is no dispute regarding Complainant’s payment on the underlying contract. It is also undisputed that some of Respondent’s work on the project fell below the Registrar’s minimum workmanship standards. It is further undisputed that the Registrar’s post investigative Directive required Respondent’s full compliance by May 28, 2020, and that Respondent did not timely comply.

Therefore, the only remaining issue to address is whether Respondent raised sufficient justification or excuse for failing to timely and completely remediate all complaint action items outline in the Registrar’s Directive. This is an affirmative defense that Respondent bears the burden to establish. Here, the record reflects that although Respondent failed to adhere to a Registrar Directive, Respondent had an affirmative defense for failing to timely remediate complaint item 6. Complainant selected the windows at issue and Respondent had no part in the coating of said windows. Additionally, Investigator Grimm made no mention of poor workmanship regarding their installation, only that they were “mismatched.” An unfortunate happenstance that Respondent cannot be deemed liable for. Notably though, Respondent did not have an affirmative defense for failing to timely remediate complaint item 2. Respondent’s denial of access argument does not have any merit because Respondent failed to act until July 13, 2020, and further failed to offer sufficient justification or excuse for the delay in delivery.

Because Complainant established violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established grounds for the Registrar to take disciplinary action against Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent Window Products Inc., dba Cascade Windows, ROC License No. 293265, be suspended for one (1) day.

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, October 14, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors