ALJDEC - Licensing

2023A-06592-CHC-ROC · Registrar of Contractors · 2024-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Donald Lawrence Wilson Contemporary

Refrigeration Inc.

COMPLAINANT

Southwest Windows and Doors, LLC

DBA: Renewal by Andersen of Arizona

License No. ROC 311233,

RESPONDENT

No. 2023A-06592-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 9, 2024

APPEARANCES: Complainant Donald Lawrence Wilson appeared via Google Meet on his own behalf. Steven Tillman appeared via Google Meet on behalf of Respondent Southwest Windows and Doors, LLC.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

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

Donald Lawrence Wilson (Complainant) agreed to have Respondent replace and install new windows at his residence.

On or about June 27, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Smith. The jobsite inspection was performed on August 3, 2023.

Investigator Smith then issued a written directive on or about August 4, 2023, 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 September 11, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Newly installed windows are enclosed on the outside exterior with dimensionally field cut angled metal without the use of a full linear solid base or support backing. .”

Investigator’s Observations: Verified.

There is no solid or continuous backing material behind the installed metal exterior trim.

As a result, the metal exterior trim is:

• Flexing/moving in and out

• Deformed; bent inward and outward

• Wavy

• Dented

Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar;

Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes...

Complaint Item 3: “On some of the windows the metal is wavy, bent inward or protruding outward, and has already been subject to heat related flexing...”

Investigator’s Observations: Verified.

There is no solid or continuous backing material behind the installed metal exterior trim.

As a result, the metal exterior trim is:

• Flexing/moving in and out

• Deformed; bent inward and outward

• Wavy

• Dented

• Sloping in towards the windows at the some of the exterior sills

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;

Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 4: “...causing caulk to split, crack and separate from the edges of the metal...”

Investigator’s Observations: Verified.

There are several areas of issues related to caulking/sealing:

• Gaps

• Voids

• Cracks

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;

Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 5: “...providing a conduit for any adverse weather penetration into protected areas.;”

Investigator’s Observations: Verified.

Based on photos shown by the complainant during the jobsite inspection, and a verbal description provided by the respondent, the new windows are not sealed to the pre-existing moisture barrier behind the stucco.

This is a framed stucco house.

To maintain an exterior moisture seal, the moisture barrier behind the stucco is required to be sealed to the windows.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;

Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 6: “Placement of windows are very inconsistent and not centered within opening.

Vertically some of the angled metal cuts vary in size as much as one half inch when comparing left side to right side of the window. Horizontally some extend outward from wood beams as much as one inch from exterior face of beam while others are slightly recessed or are flush with face of beam. ;”

Investigator’s Observations: Verified.

Window placement in the walls is not consistent:

• In comparison to the stucco, window recess dimension varies from 1/2 inch to 1-5/8 inches.

• In comparison to the wood header beams, window protrusions vary from 0 inches to 1-1/4 inches.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;

Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 7: “Excessive caulk was applied and smeared over the cut metal and onto existing stucco. Applied beads of caulk vary in sizes from one quarter inch to over one inch. In some areas, caulk has already proven to split or separate from the flexing, warping, non backed supported metal, exposing windows and internals of house to inclement weather.;”

Investigator’s Observations: Verified.

Caulking around the exterior of the windows, specifically between the exterior metal trim and the stucco, is excessively wide, up to 1-1/4 inches in width.

There are several areas of caulking and/or adhesives smeared on the exterior surface of the windows and metal trim.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;

Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 9: “Workmanship is shoddy, and were not installed in a professional workman like manner. The botched, unsupported, field cut metal with excessive caulk is terrible looking reflecting an adverse appearance of the hastily installed windows replaced by an amateur.”

Investigator’s Observations: These generalized statements by the complainant do not implicate a workmanship specific workmanship issue, or a specific violation of A.R.S. § 32-1154(A).

Specific workmanship allegations are addressed in preceding complaint items.

Governing Rule: N/A

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Warning Letter: Elements of a Contract.

Investigator’s Observations: The respondent’s contract is missing the following information:

• An estimated date of completion

o The contract includes: “Estimated Completion: Subject to change”

• Scope of work

o The contract includes an itemized list of new windows (on pages titled “Itemized Order Receipt”)

o The contract does not mention if this is new construction or pre-existing construction.

o The contract does not mention removal of pre-existing windows.

• Information about the customer’s right to file a complaint with the registrar

o Included, but not in at least ten point bold type.

• Contact information for the registrar

o Included, but not in at least ten point bold type.

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information:

1: The name of the contractor and the contractor's business address and license number.

2: The name and mailing address of the owner and the jobsite address or legal description.

3: The date the parties entered into the contract.

4: The estimated date of completion of all work to be performed under the contract.

5: A description of the work to be performed under the contract.

6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an allegedviolation of section 32-1154, subsection A.

9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A.

9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...

9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

Warning Letter: Performing permit required work without a permit being obtained.

Investigator’s Observations: This project includes replacing 53 windows.

This is permit required work that was performed without a permit being obtained.

The contract includes: “Contractor shall obtain all building permits for the work to be performed under

this Agreement.”

Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code...

Governing Rule: A.R.S. § 32-1154 (A)(3) - R 4-9-108(b): Violation of any rule adopted by the registrar;

Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards...

Building Code: IRC (International Residential Code) R105.1: “Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.”

REQUIRED CORRECTIVE ACTION:

The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to satisfy all requirements of the local building official, and to submit a copy of the approved inspection results to the ROC Investigator.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “Some of these dimensional field cuts vary in lateral sizes as much as one half of an inch vertically when compared from top to bottom. Visual disparity can be determined without the use of a tape measure.;”

Investigator’s Observations: This allegation is NOT verified as a violation of A.R.S. § 32-1154(A).

Specific to the dimensions of the exterior metal trim; all trim width variations appear to be a result of the pre-existing stucco, not a deficiency with the installation of the new windows.

Governing Rule: N/A

Complaint Item 8: “New windows were exteriorly enclosed with metal in lieu of stucco that does not match the exterior finish of the existing six doors that were not replaced.”

Investigator’s Observations: This allegation is NOT verified as a violation of A.R.S. § 32-1154(A).

The contract does not specify how the exterior of the windows will be finished.

Governing Rule: N/A.

(All errors contained in the original).

On October 30, 2023, Investigator Smith conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Smith found:

. . .

Compliance Jobsite Inspection

Present for the Complainant:

• Donald Wilson

Present for the Respondent:

• The respondent was not present.

Number of days allowed for corrective work per the Directive:

• 28, then extended an additional 14

Number of days from issuance of the Directive to this inspection:

• 88

Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.

Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...

General Notes: The complainant, Mr. Wilson, stated he is willing to accept the current condition of all but three windows and the patio door. The patio door, two windows on the east side of the house, and one window on the north side of the house.

Complaint Items 1, 3, 4, 5, 6, 7, 9:

Compliance Inspection Findings for this item: Corrective has been performed; however, the current conditions do not meet ROC Workmanship Standards.

• Still present at, at least three windows:

o There is no solid or continuous backing material behind the installed metal exterior trim. As a result, the metal exterior trim is:

 Flexing/moving in and out

 Deformed; bent inward and outward

• Still present at, at least three windows: Window placement in the walls is not correct:

o Windows are not recessed from the wood beams

o Windows are not parallel with the wood beams

• Still present at, at least three windows:

o Gaps/voids in the caulking

o Missing caulking

• As a result of recent corrective work:

o Wood cladding at the interior side of the patio door is loose and damaged.

• There is no evidence the windows have been sealed to the pre-existing moisture barrier

As stated on the Directive: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

Compliance Inspection Findings for this item: The respondent has not submitted an updated/revised contract form.

As stated on the Directive: The Respondent is to obtain any and all required building permits from the Local Building

Authorities prior to making corrections listed in this Directive.

Compliance Inspection Findings for this item: The respondent has not provided documentation to confirm a permit has been obtained, and finaled, for this project. The respondent did forward a “Screen shot” image that included verbiage stating an inspection has passed. However, this “screen shot” image does not include an address, permit number, scope of work, or information specific to this project at this address.

(All errors contained in the original).

On October 31, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and A.A.C. R4-9-108(b); A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about November 13, 2023, Respondent timely submitted Answer to the Registrar.

On or about November 29, 2023, a Notice of Hearing was issued setting a hearing on January 9, 2024, at the Office of Administrative Hearings, an independent state agency.

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

Investigator Smith testified that there was no permit for the project and that Respondent’s contract did not meet the minimum elements as described in the Written Directive. Investigator Smith also testified that this project was completed at Mr. Wilson’s personal residence and the contract was signed by him personally, and not through his business.

Further, Investigator Smith testified that there was no solid or continuous backing material behind the metal trim which caused flexing and sloping trim. Also, the caulking was either excessive in areas or in adequate in others. Too, the placement of the windows were not consistently placed in the walls.

In addition, Investigator Smith that the parties had agreed to extend the Written Directive and that the corrective work was done on September 15 and 16, 2023.

Investigator Smith testified that Respondent sent him a “screen shot” of what purported to be information that the work passed inspection, but it was lacking significant detail to confirm the same.

Finally, Investigator Smith testified that an updated sample contract complying with the statute had not been provided.

Mr. Wilson testified that he had been a contractor since 1978. He also believed that he was lied to about the project such as to which location in his house Respondent would commence work. Mr. Wilson testified that Respondent made a total mess replacing the 53 windows and that he did not want Respondent back at his residence.

Mr. Tillman testified that there was poor performance on Respondent’s part and this project had demonstrated some of the communication shortcomings within its departments in Phoenix and Tucson. Mr. Tillman testified that it was his intention to get the project right.

Administrative notice was taken of Respondent’s prior License record on January 24, 2024. Such prior License record reflected that Respondent’s License No. 311233 was first issued on February 13, 2017, and reflected that there were three open complaints, one of which was the present complaint, and five resolved/settled 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 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 there was no permit for the job, and therefore, Respondent was in violation of A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 preponderance of the evidence established that Respondent’s contract did not meet the minimum elements of a contract pursuant to A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Per Investigator Smith’s testimony, there were still at least three windows which were not correctly repaired. 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. 311233 for a period of two 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.

It is further recommended that Respondent provide an updated sample contract which complies with A.R.S. § 32-1158, within 30 days. If Respondent failed to provide the same, the Registrar shall suspend Respondent until said sample contract is provided.

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, January 24, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Donald Lawrence Wilson Contemporary

[email redacted]

Southwest Windows and Doors, LLC

DBA: Renewal by Andersen of Arizona

[email redacted]

By: OAH Staff