ALJDEC - Licensing

2023A-00704-CHC-ROC · Registrar of Contractors · 2023-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Winifred Wallin,

COMPLAINANT,

v.

Southwest Windows and Doors, LLC,

DBA: Renewal by Andersen of Arizona,

License No. ROC 311233,

RESPONDENT.

No. 2023A-00704-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 29, 2023

APPEARANCES: Complainant Winifred Wallin appeared on her own behalf. Bob Tillman, Qualifying Party, appeared on behalf of Respondent Southwest Windows and Doors, LLC, dba Renewal by Andersen of Arizona.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Southwest Windows and Doors, LLC, dba Renewal by Andersen of Arizona. Southwest Windows and Doors, LLC, dba Renewal by Andersen of Arizona (Respondent) is the holder of License No. 311233 issued by the Arizona Registrar of Contractors (Registrar or ROC).

On or about October 20, 2021, Winifred Wallin (Complainant) entered into a contract with Respondent for the removal and replacement of multiple windows in her home. The work began in February 2022 and was completed on March 10, 2022.

In February 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor installation work and poor functionality of the windows.

The Registrar assigned the complaint to Investigator Chris Fultz. After a jobsite inspection on March 14, 2023, Investigator Fultz issued a Written Directive 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 April 14th, 2023.

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 -Poor Installation: (3) Double Hung windows are not

installed squarely into the frames. They do not function properly or operate with ease.

Investigator’s Observation: I was able to open the windows, I did not

attempt to open the double hung option of the window. I was not able to

confirm if the manufacture has different weights for the resistance of the

windows. There isn't a standard for what the window resistance is.

The issue I did confirm, the right side window in the living room was not

properly sealed and there was an active air flow from the outside.

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.

In the Written Directive, Investigator Fultz specified that, as to the remaining items on the Complaint, no corrective action was required of Respondent for the stated reasons therein.

Following the issuance of the written directive, a supply issue delayed some corrective work, and the parties were cooperating to allow Respondent to make some adjustments to the work even as to items the Investigator found were within standards or did not need correction. Respondent reset the windows and made adjustments.

The Investigator eventually referred the matter to Legal and the ROC issued the Citation on May 2, 2023. The Citation against Respondent charged 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).

At hearing, Investigator Fultz testified as to the Registrar’s involvement in this matter. Specifically, Investigator Fultz reviewed his findings at the jobsite inspection and the issuance of the written directive.

Complainant complained about “sloppy” installation, workers leaving a mess or stains on drywall, and poor caulking. Further, she argued that the double hung window still did not operate per her expectations, in that it seemed to seize up and she was physically not able to open it as she had expected. Complainant indicated that Respondent offered to put on a handle, but she declined indicating it would make the blinds bulge out even more than they do with these newer windows. Complainant wants the window to function better. Additionally, Complainant was unhappy with the smaller windows’ frames, indicating that the frames were larger [3 1⁄2”] than had been on her old windows [1”] resulting in less “window glass” for the view.

Respondent noted that they came back on the job and worked to make Complainant happy, even on items not directed to be corrected. Respondent further stated that the double hung window did operate in the manner as it was designed and that in trying to satisfy Complainant, that they had first used a lubricant and also ordered and installed new “’balancers” to help in lifting the window sash for the large window.

Administrative notice is taken of Respondent’s prior License record on July 19, 2023. Such prior License record reflects that Respondent’s License No. 311233 was first issued in February 2017 and is renewed through February 28, 2025. Respondent’s prior License record also reflects that there was one open complaint and four other resolved cases.

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 Vazzano 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 evidence established that Respondent’s work on the one window was not in conformity with the Registrar’s standards. Therefore, the hearing record 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 that Respondent did complete the corrective work following the Directive being issued. Therefore, Complainant failed to establish that Respondent either did not take appropriate corrective action following a written directive from the Registrar or violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar dismiss Complainant’s Complaint and take no disciplinary action against Respondent’s License No. 311233.

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, July 19, 2023.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Chris Fultz Investigator

[email redacted]

Bob Tillman

[email redacted]

Winifred Wallin

[email redacted]

By: OAH Staff