ALJDEC - Licensing

2022A-08006-CHC-ROC · Registrar of Contractors · 2023-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fred Miller,

COMPLAINANT

Nationwide Sunrooms and Contracting LLC

License No. ROC 316020,

RESPONDENT

No. 2022A-08006-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 26, 2023

APPEARANCES: Complainant Fred Miller appeared via Google Meet on his own behalf. Richard Craven appeared via Google Meet on behalf of Nationwide Sunrooms and Contracting LLC. Investigator David Fagerburg appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Nationwide Sunrooms and Contracting LLC (Respondent) is the holder of License No. 316020 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 18, 2021 Fred Miller (Complainant) agreed to have Respondent install a new sunroom at his residence. The total cost was $58,000.00.

On or about September 14, 2022, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator David Fagerburg. The jobsite inspection was performed on November 7, 2022.

Investigator Fagerburg then issued a written directive on or about November 18, 2022, to Respondent that provided 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 Tuesday December 13, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: New Sunroom Replacement 1. Master bedroom CEILING LEAKS, shows damage from leak.. Contractor made aware but has not come to see the damage or attempted repair. The sliding door was cut out from the existing walk deck elastomeric coating and the new door simply caulked in at the bottom and loose flashings resulting in continuous leaking into master bedroom.;;

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 2a: 2a Continuous ACTIVE LEAKS from hip corner since project completed. a. Installed glass too small for opening ,thus requiring large amounts of caulking for closure

Investigator’s Observation: Verified. The respondent is to correct the excessive amounts of sealant by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 2b: 2b. Flashing poorly installed

Investigator’s Observation: Verified. The flashing covered with black sealant is messy, unsightly and considered poor workmanship. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 4: 4. Gutter/fascia system installed with poorly cut miters, missing corner caps and butt joint hardware;;

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original).

On December 21, 2022, Investigator Fagerburg conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Fagerburg found:

Investigator Note:

1: At this compliance jobsite inspection a water test was performed at the southwest corner of the sunroom enclosure above and next to the sliding glass door for approximately 10 minutes and at the northeast roof hip of the sunroom enclosure for approximately 7 minutes. It was verified that both locations were dry prior to the water test and leaks were verified at both locations.

Compliance Findings:

The respondent is not in compliance with the directive.

Compliant Item 2a: 2a Continuous ACTIVE LEAKS from hip corner since project completed. a. Installed glass too small for opening ,thus requiring large amounts of caulking for closure.

The respondent is not in compliance with the directive.

Compliant Item 2b: 2b. Flashing poorly installed

The respondent is in compliance with the directive.

Compliant Item 4: 4. Gutter/fascia system installed with poorly cut miters, missing corner caps and butt joint hardware;;

The respondent is in compliance with the directive.

(All errors contained in the original).

On January 6, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

On or about January 20, 2023, Respondent e-mailed an Answer to the Registrar.

On or about February 8, 2023, a Notice of Hearing was issued setting a hearing on March 17, 2023 at the Office of Administrative Hearings, an independent state agency.

After a continuance, a hearing was held on May 26, 2023.

At hearing, Investigator Fagerburg testified as to the Registrar’s involvement and the above timeline.

Investigator Fagerburg testified that Respondent failed to appear at the Compliance Jobsite Inspection. At that inspection, there were still leaks by the sliding glass door, the northeast roof hip corner and the southwest corner of the sunroom.

Further, Investigator Fagerburg testified that the flashing should have been placed under the stucco, but that there was so much sealant that it was tough to tell if this was the case.

Finally, Investigator Fagerburg testified that there was enough time to complete the work per the Written Directive, but that the work performed by Respondent was not quality work.

Fred Miller testified that he hired Respondent to replace a 30 year old sunroom. He testified that to this day, leaks were present and have never been properly corrected by Respondent.

Mr. Miller testified that he hired an independent inspector to inspect the sunroom, and hired a roofer to ensure that the roof was not causing the leaks or interfering in some manner with the sunroom.

Finally, Mr. Miller testified that the leaks were coming from the glass and he just wanted the sunroom to stop leaking, and that the level of quality was unacceptable.

Respondent offered the testimony of Randy Chavis, Damion Pearsall and Richard Craven.

Mr. Chavis testified that Respondent satisfied all of Mr. Miller’s punch list items as well as the Registrar’s Directive and that Mr. Miller was satisfied. Mr. Chavis also testified that he was involved in three water tests, and the last one was successful after the corrective work was performed. Mr. Chavis testified that the sunroom was installed per the manufacturer’s requirements, and did not see how it could still leak, but admitted there could still be circumstances were the sunroom could leak.

Next, Mr. Pearsall testified that there could be no leaks in the areas above the sunroom because glass does not leak.

Finally, Mr. Craven testified that Respondent had been in business for 23 years, and was number 1 in the U.S. for installing sunrooms. Mr. Craven wondered how the sunroom could still be leaking if there had been no rain. Further, Mr. Craven testified that while a TEMO sunroom was used for Mr. Miller, he no longer uses TEMO units. However, Mr. Craven testified that the framing was only a TEMO product, and not the glass. Finally, Mr. Craven testified that all corrections were made per the Directive and that he put $6,000.00 of extra work in the sunroof and offered to pay for another company to repair the sunroom to Mr. Miller’s satisfaction. However, Mr. Craven testified that he was by far the best and he should not be penalized.

Administrative notice was taken of Respondent’s prior License record on June 12, 2023. Such prior License record reflected that Respondent’s License No. 316020 was first issued on October 3, 2017, and reflected that there were two open complaint, one of which was the present complaint, and one disciplined case. Further, Respondent’s license was suspended as of June 8, 2023.

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 violations 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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There was damage to the ceiling in the master bedroom; there were leaks from the hip corner; flashing was poorly installed; and the gutter gutter/fascia system had poorly cut miters. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Per Investigator Fagerburg’s testimony, the sunroom still leaked during his water test at the Compliance Jobsite Inspection. Perhaps had Mr. Craven appeared at the Compliance Jobsite Inspection, he could have seen the leaks to try to troubleshoot the same after his corrective work? Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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 Respondent’s License No. 316020 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, June 12, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Rod Galazara

[email redacted]

Fred Miller

[email redacted]

Nationwide Sunrooms and Contracting LLC

[email redacted]

By: OAH Staff