ALJDEC - Licensing

2023A-09068-CHC-ROC · Registrar of Contractors · 2024-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffrey West ,

COMPLAINANT

Morgan Taylor Homes LLC

License No. ROC 241477,

RESPONDENT

No. 2023A-09068-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 4, 2024, 9:00 A.M.

APPEARANCES: Complainant Jeffrey West appeared on his own behalf; Mike DeMore, General Manager, appeared on Behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger Geddes

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit No. 1; Respondent submitted no exhibits

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Morgan Taylor Homes, LLC (“Respondent”), is the holder of License Number 241477 issued by the Registrar of Contractors (“Registrar”).

2. On or about August 19, 2023, Jeffrey West (“Complainant”) filed a Complaint against Respondent with the Registrar alleging issues with windows of a residence built by Respondent in Cave Creek, Arizona (“project”).

3. The Registrar performed a job site inspection of the project on September 26, 2023. Thereafter, the Registrar issued a Written Directive, dated October 3, 2023, requiring Respondent to remedy the following violations by October 25, 2023, by appropriate means:

Compliant Item 1: The finish on the metal windows/screens was ruined when they restucco'd 3/4 of the house due to cracks. A bonding agent was sprayed on the entire house before the windows were tapped off. That sat for 2 days before plastic was removed. The builder then tried to clean the frames over a month later with a strong vinegar solution that seemed to make the finish on the aluminum windows worse.;

Investigator’s Observation: Verified. The respondent shall correct the east and south facing window frames and the courtyard sliding glass door frame with white discoloration and all effected screens by appropriate means.

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

4. The Registrar performed a Compliance Job Site Inspection on November 13, 2023, at which time it made the following findings:

Investigator Notes:

1: After a Written Directive was issued on October 3, 2023 the respondent sent an email later that day with the following additional information. Hi David, I made a call to the superintendent who built the home and asked him about the windows and what I can possibly learn from him concerning the white substance on the window sills. He told me Mr. West is afraid of bats and that bats were hanging on the window sills and defecating on the windows sills during construction. Mr. West would go to the house and spray some kind of chemical on all window sills to deter the bats and use something to clean up after the bats. This may explain why the white substance was only on the window sills. Just and FYI and I did not know about this until today.

2: Along with the jobsite inspection notice additional information is provided to both parties regarding the manner and method of performance: The Registrar does not provide specific instructions for how to correct poor work. A licensed contractor is expected to have the skill and professionalism to complete the work. Moreover, the complainant may not dictate the manner of repair.

3: During the Written Directive time frame the complainant acknowledged that the respondent requested access to the property to paint the window frames in question but was denied as the complainant disagreed with that method of correction claiming this would void the warranty. The respondent was only allowed another opportunity to clean the areas in question using a water vinegar solution mix.

Compliance Findings:

Investigator’s Observation: At this compliance jobsite investigation at the sliding glass door bottom frame in the front courtyard I am able to verify the white discoloration previously observed has been removed. During this compliance jobsite investigation at the top of the sliding glass door frame the complainant pointed out what appears to be masking tape residue that remains. This is not a complaint item listed on the complaint form. The respondent agreed that this white discoloration is masking tape residue. At the east and south facing bottom window frames similar results were observed. However, at the 1 east facing window the bottom frame finish appears to be compromised. In reviewing the Milgard Window website warranty under Excluded Conditions, This Warranty does not cover, and Milgard has no obligation to respond to, damage, conditions, or a Nonconformity caused in whole or part by: Alterations or modifications of the Product or components, such as field mulls, reinstallation, application of tints, films, sealant, caulk, or paint finishes; installation of security systems or window coverings; environmental or applied elements that exceed the tolerances of the Product or its components’ performance ratings. Based on the Milgard Warranty, painting the window frames will void the warranty.

Governing Rule: The respondent is not in compliance with the directive.

5. The Registrar then issued a Citation to Respondent, dated November 22, 2023, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing after a continuance for April 4, 2024, 1:00 P.M. At the hearing, Complainant Jeffrey West testified on his own behalf; Respondent presented the testimony of Mike DeMore, General Manager. David Fagerburg, the Registrar Investigator (“Investigator”), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit No. 1 (all unmarked photographs); Respondent did not submit exhibits.

7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he stated that apparently the vinegar/water solution attempted by Respondent was not successful and painting was not an option as it would have voided the warranty on the windows. He further stated that the problematic areas were on the courtyard patio door and one window facing south and one facing east mainly on the bottom of the frame. He said whatever residue there might have been on the windows was not necessarily the issue now; rather, the finish was compromised possibly by rubbing with an abrasive to clean it. He further testified he did no testing and that it appeared to him that many of the questionable areas may have been mostly calcium and hard water stains as the residence was close to two years old.

8. Complainant Jeffrey West testified, as herein relevant to the Citation, that this issue stemmed from extensive cracking on the stucco and when Respondent re-applied stucco, its stucco subcontractor sprayed a bonding agent from the roof before the windows were taped. He stated that after the work, there was a residue on window and screens that he first tried to remove with window cleaner but was unsuccessful. He testified that Respondent tried several times over a fourth month period to clean the frames and removed some but not all of the substance. He stated that all of the frames used to be black before Respondent did the stucco work and that they are now gray. He further testified that Respondent wanted to spray paint windows but he would not allow that because the window manufacturer indicated it would void the lifetime warranty of the frames.

9. Mike DeMore testified on behalf of Respondent, as herein relevant to the Citation, that Complainant was dictating how Respondent could complete corrective action by not allowing Respondent to paint the windows. He stated that the frames could be painted and that Respondent itself and its window subcontractor, as opposed to the manufacturer, had been willing to extend the warranty on the affected windows, but Respondent would not accept this as corrective action. He further stated there is no definitive proof as to what caused the damage, if any, to the windows and that there was no testing performed to confirm Respondent had applied a residue.

10. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued License No. 241477 on March 27, 2008, and is presently in active status. The site also reflects one Open case, no Disciplined cases, and two Resolved/Settled cases.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....

5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case was Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”

6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and to establish a violation of Arizona Administrative Code Rule 4-9-108(a). The Tribunal found the testimony of the Investigator to be persuasive that the three areas – mainly the bottom of the frames on the courtyard patio door and one window each facing south and east – resulted from work that was not performed in a professional or workmanlike manner. The Tribunal acknowledges that Complainant believed that all and not just some of the windows were damaged by Respondent in that the once black frames were now gray due to stucco and attempted work by Respondent. However, it was apparently the opinion of the Investigator that not all the work on the windows fell below the professional and workmanlike work standard. Notwithstanding the photographs presented by Complainant, the Tribunal did not see sufficient evidence to find otherwise.

7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. While the Tribunal acknowledges that Respondent made several attempts at corrective action, the fact remains that it was not fully corrected. As to Respondent’s contention that Complainant would not permit specific corrective action, namely Respondent repainting the frames and giving a substitute warranty, the Tribunal finds that it was reasonable for Complainant to reject such an alternative. There was no dispute that repainting would void the window manufacturer’s lifetime warranty. Further, the evidence presented was insufficient to show that a substitute warranty from Respondent and an unspecified subcontractor would be the equivalent of the manufacturer’s lifetime warranty.

8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Morgan Taylor Homes, LLC’s, License Number 241477 is suspended for two (2) days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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)(5), unless Respondent tenders payment of the 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, April 24, 2024.

/s/ Roger Geddes

Administrative Law Judge

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

Tom Cole

Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Jeffrey West

36141 N. Summit Dr

Cave Creek, AZ 85331

[email redacted]

Morgan Taylor Homes LLC

10045 E Dynamite Blvd Suite 200

Scottsdale, AZ 85266

[email redacted]

By: OAH Staff