ALJDEC decisions subject to certification as final

2021A-04994-CHC-ROC · Registrar of Contractors · 2022-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Deborah Ann Nelson,

COMPLAINANT,

v.

Whole Sales Thermo Window & Doors LLC

DBA: Payless Thermo Windows and Doors

License No. ROC 272928,

RESPONDENT.

No. 2021A-04994-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 27, 2022

APPEARANCES: Complainant Deborah Ann Nelson appeared on behalf of herself. No one appeared on behalf of Whole Sales Thermo Window & Doors LLC

DBA: Payless Thermo Windows and Doors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Whole Sales Thermo Window & Doors, LLC DBA: Payless Thermo Windows and Doors (Whole Sales Thermo or Respondent) holds license number 272928 issued by the Arizona Registrar of Contractors (ROC).

2. On or about April 2, 2021, Whole Sales Thermo and Complainant Deborah Ann Nelson entered into a windows and doors installation contract for the amount of $20,430.

3. Ms. Nelson paid Whole Sales Thermo $15,332.50 for the project.

4. On July 15, 2021, Whole Sales Thermo began work under the contract.

5. On October 4, 2021, Ms. Nelson filed a complaint with the ROC alleging poor work and abandonment on the part of Whole Sales Thermo.

6. On November 23, 2021, ROC Investigator David Thomas conducted a job-site inspection.

7. On January 5, 2022, the ROC issued a Directive to Whole Sales Thermo. The Directive provided, in relevant part, as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on .01/31/2022

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - 07/15/21 installers came. No doors

Investigator’s Observation: This complaint item is verified. Contract states 1-patio door and 1-french sliding door. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - 2 wrong size windows

Investigator’s Observation: This complaint item is verified. This is verified as the respondent confirmed at the Jobsite that two windows that arrived on the day of installation were the wrong size and were not installed. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - missing window

Investigator’s Observation: This complaint item is verified. This is verified as the respondent confirmed at the Jobsite that a window was missing on the day of installation. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - 4 double pane, not triple pane as ordered.

Investigator’s Observation: This complaint item is verified. 4 windows that were installed were double pane. Contact states these four windows were ordered as triple pane. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - 2 bedroom windows solid glass no egress.

Investigator’s Observation: This complaint item is verified. Two of the installed bedroom windows are solid pane windows. This is a IRC code violation as the window must have an egress. Respondent shall correct by appropriate means.

Compliance Item: 7 - All incorrect windows were installed until replacements come per Randy W.

Investigator’s Observation: This complaint item is verified. Incorrect windows were installed. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

8. On January 10, 2022, the ROC issued a Directive to Whole Sales Thermo and amended Complaint item 1 as follows:

Compliance Item: 1 - 07/15/21 installers came. No doors

Investigator’s Observation: This complaint item is verified. Contract states 1-patio door and 1-french sliding door. Addendum item as of 01/10/2021 an additional French patio sliding door for a total of 3 doors not ordered. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

9. Whole Sales Thermo was required to correct the Directive items by January 31, 2022.

10. Whole Sales Thermo failed to comply with the Directive by the due dates.

11. On February 14, 2022, the ROC issued a Citation against Whole Sales Thermo’s license. Through the Citation, the ROC alleges that Whole Sales Thermo may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3)(specifically, Arizona Administrative Code section R4-9-108(a); and A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Respondent.

12. Whole Sales Thermo filed a timely answer to the Citation. In its answer, Whole Sales Thermo did not dispute that it failed to complete the project. See the ROC’s administrative record, pg. 187.

13. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

14. A hearing was held on April 27, 2022 at the OAH.

15. At hearing, Ms. Nelson testified on behalf of herself. Investigator Thomas testified regarding his investigation of the complaint and the issuance of the Directives.

16. Ms. Nelson explained that she hired Whole Sales Thermo to install 12 windows and three doors. Ms. Nelson complained that Whole Sales Thermo only installed three windows. The windows that Whole Sales Thermo installed in two bedrooms did not provide egress.

17. No one appeared on behalf of Whole Sales Thermo at the hearing on April 27, 2022. No one filed a request to appear telephonically on behalf of Whole Sales Thermo. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Whole Sales Thermo through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Whole Sales Thermo did not present any evidence to defend its license.

18. Administrative notice is taken of Whole Sales Thermo’s prior license record on April 29, 2022. Such prior License record reflects that license No. 215939 was first issued to Whole Sales Thermo on May 18, 2011, and is active. Such prior license record also reflects that there is one open complaint against Whole Sales Thermo’s license. The ROC has not imposed disciplined on Whole Sales Thermo’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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, 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)

3. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent failed to provide egress through the windows in two bedrooms, which is a violation of A.R.S. § 32-1154(A)(2)(b).

5. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

6. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Whole Sales Thermo Window & Doors LLC DBA: Payless Thermo Windows and Doors License No. ROC 272928, for three days. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date.

No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, April 29, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary