ALJDEC - Licensing
2023A-05167-CHC-ROC · Registrar of Contractors · 2023-11-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Elizabeth Lemay,
COMPLAINANT
v.
A to Z Retrofit LLC
License No. ROC 291392,
RESPONDENT
No. 2023A-05167-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 8, 2023
APPEARANCES: Complainant Elizabeth LeMay appeared on her own behalf. Sam Chica, owner and qualifying party, appeared on behalf of Respondent A to Z Retrofit LLC.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
_____________________________________________________________________
FINDINGS OF FACT
A to Z Retrofit LLC (Respondent) is the holder of License No. 291392 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 22, 2022, Elizabeth Lemay (Complainant) entered into a contract with Respondent for, among other things, the installation of windows and sliding glass doors.
On or about May 2, 2023, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Lisa Melton. The May 2, 2023 complaint was dismissed on May 10, 2023 for insufficient evidence.
On May 23, 2023 Complainant filed a new complaint item alleging that the windows installed at the home were not the contracted-for Cascade brand, but rather AOI brand windows.
After a jobsite inspection on July 12, 2023, Investigator Melton 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 August 11, 2023.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item 4: Through our own investigating, we have determined that the contractor sold us Cascade Windows and Sliding Glass Doors, but installed American Openings Windows and Sliding glass Doors. In the “Notes Box” on both his quote and invoice it states “these windows come with lifetime warranty Cascade windows”. I feel we were scammed by this contractor and would like to proceed to a resolution.
Investigator’s Observation: Quote “Description” does not identify window/sliding glass door manufacturer however Quote does state “...Windows come with a lifetime warranty Cascade Windows...” Manufacturer labels have been removed from some the windows/sliding glass doors. Labels that are still intact identify manufacture as American Openings, Inc. Windows/sliding glass doors appear to be consistent in type, color and material. Respondent should correct by appropriate methods to comply with contract (quote).
Governing Rule: A.R.S. §32-1154 (A) (2) (a), Departure from or disregard of: Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Following the issuance of the written directive, Investigator Melton emailed the parties on August 1, 2023 inquiring whether the work had been corrected. Respondent did not respond to the email. Complainant advised no corrective work had been performed.
After the deadline in the directive expired, Investigator Melton forwarded the matter to the legal department.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(a) and Ariz. Rev. Stat. § 32-1154(A)(22).
Investigator Melton testified that some of the windows did not have labels, but that of the labels that were present, the labels indicated the windows were American Opening Windows rather than Cascade Windows, the contracted upon brand. There were no other specification of materials beyond what was listed in the quote.
Complainant testified that it wasn’t until she was trying to get a screen that she realized she paid for a product that she didn’t receive. She further testified that the warranty information Respondent sent over was for the originally-contracted Cascade brand and that she was never advised that what was installed was American Opening (AOI), not Cascade.
Complainant advised that she believed that the locking mechanisms were going to be different in that the ones delivered had more of a “commercial” look than what she believed the Cascade windows would have had. Admittedly, however, she had never seen the locking mechanisms on the Cascade windows either. Complainant has since sold the home.
Joseph Harrell, a witness for Complainant, testified. Mr. Harrell is Complainant’s fiancé and also lived in the home. He advised that after the AOI windows had been installed, he went to a Scottsdale showroom to attempt to look at the product that should have been installed in the home. However, admittedly, the showroom did not carry the aluminum version of the Cascade windows and he could not testify to the model number he actually observed.
Sam Chica testified Cascade had been telling him that the windows were being manufactured (when in fact they were not) and that this was occurring on several projects that he had at the time. Months passed and he was unable to receive any answers from Cascade with regard to any status update. Ultimately, he received a quote from AOI, which was more costly, but did not pass the difference in price onto Complainant.
Mr. Chica ultimately learned months later that the company was no longer manufacturing the windows Complainant wanted on the smaller single residential scale.
Mr. Chica testified that the Cascade window and the AOI window are identical due to the history of the Paramount Window Company. Paramount Windows was bought by Sam Regina of Cascade. Ms. Regina’s brother, Tom Regina, owns AOI and they use the exact same Paramount Aluminum Series window.
Finally, Mr. Chica testified that because the windows were identical, he never advised Complainant that the windows were AOI and not Cascade. There was not any evidence presented to rebut this.
Administrative notice is taken of Respondent’s prior License record on November 8, 2023. Such prior License record reflects that Respondent’s License No. 291392 was first issued on April 14, 2014, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent did not complete the project in accordance with the plans without Complainant’s consent, but the departure was not in a material respect that was prejudicial to the Complainant. Therefore, Complainant has not established that Respondent departed from or disregarded the plans to the extent required to be considered a violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a).
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. However, the evidence also established that it was not possible for Respondent to complete the corrective work as the corrective work called for Respondent to install a brand of windows that was no longer being manufactured for that type of residence. While Respondent failed to take appropriate corrective action following a written directive from the Registrar, Respondent had valid justification for doing so given the impossibility. Therefore, Complainant failed to establish a violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Lemay’s complaint in Case No. 2023-05167 against Respondent A to Z Retrofit LLC’s License No. 291392.
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, November 9, 2023.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
A to Z Retrofit LLC
10302 W Earll Dr
Avondale, AZ 85392
[email redacted]
Elizabeth Lemay
8430 E Del Norte Ct
Scottsdale, AZ 85258
[email redacted]
By: OAH Staff