ALJDEC

98F-M0525-ROC · Registrar of Contractors · 1998-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 1998 APPEARANCES: Jill Spaulding, Complainant, in her own behalf Tom DiGiambatista, Qualifying Party, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT The parties entered an agreement in June, 1997, whereby the Respondent would apply a Solis film to the majority of the dual pane windows at the Complainant’s home in Mesa. The Complainant wanted to protect carpeting and furniture from the damaging effects of sunlight. The home had been completed and the Complainant had moved in, only a month or two previously. The quoted cost of the contract was $6,176.00 including tax. During the first few months in the home, the Complainant had covered the interior of many of the windows with cardboard to keep the sunlight out. On or about August 5, 1997, the Respondent had two employees begin the Solis installation at the Complainant’s home. No problems were noted during the installation until approximately 1:00 or 2:00 p.m. when the sunlight shifted and the Complainant and installers noted a rather large smudged area on one of the windows. The window was cleaned inside and out and it was ultimately determined that the smudge was between the panes and was due to some type of an atypical chemical reaction. The Complainant told Respondent’s employees to ensure that other windows which were to be treated did not have the same problem. The installers did some additional work, the full extent of which is undetermined, when the Complainant saw that other windows had the same smudge type problem and ordered the Respondent’s employees to leave. The job was over half completed. The Respondent sent an invoice to the Complainant in the amount of $4,168.16, which amount has not been paid. The Complainant contacted the builder of the home and complained about the defective windows. Subsequently, the builder replaced approximately 35 windows which were determined to be defective. Solis had been applied to many of the windows which were being replaced. The replacement windows are “Low-E” and different from the original windows. Some of the original windows did not require replacing because they did not have any defect. On October 27, 1997, the Complainant filed her complaint with the Registrar of Contractors (Registrar). On December 1, 1997, Inspector James Walsh (Walsh), of the Registrar’s Office, performed an inspection at the Complainant’s home with the parties present. The defective windows had already been replaced. Walsh concluded the problem was the responsibility of the general contractor, and the case was closed. Presently, the Complainant’s home has some original windows which have no defect and no Solis, original windows with Solis applied and the Low-E windows. Each of the three has a different tint. The Low E windows do not provide sufficient protection from sunlight and must also be covered by a protective film to offer the protection desired by the Complainant. However, according to the Respondent, the Solis film cannot be applied to Low-E windows and a different product will need to be used. The Complainant intends to replace the remaining original windows so that all the windows will be uniform and then apply a non-Solis product to those windows to diminish the effects of sunlight. CONCLUSIONS OF LAW The Citation and Complaint allege violation of A.R.S. 32-1154(A)(3), violation of any rule, specifically A.A.C. R4-9-108, workmanship standards, and (A)(7), wrongful or fraudulent conduct resulting in substantial injury to another. Based on the evidence, the defects in the windows were not observable until the sunlight shifted to a certain angle which made the smudges noticeable. It was not until afternoon that the Complainant and the Respondent’s employees became aware of the problem. Both assumed it was limited to one or two windows when in fact it affected 35 windows. It is unknown how many windows, if any, were completed by the Respondent after being made aware of the smudging problem. The evidence suggests that the Respondent should bear some of the responsibility for failing to make a determination of the condition of the windows before applying the Solis. Despite speculative evidence that the defective condition of the windows developed over time and the defect may not have been present when the Complainant measured for and put up the cardboard, the Complainant had some opportunity to make observations prior to the work beginning. However, a licensed contractor who presumably has some expertise in the field has the greater duty under the circumstances of this case. It would seem that there is a reasonable way to discover the condition of windows prior to the application of any transparent covering on a window. It does not seem reasonable that if some defects can only be seen when the sun shines from a certain angle, that the potential for such a situation is not anticipated and steps taken to determine if the defect exists, under varying lighting conditions, prior to applying a transparent film. Considering the evidence in its entirety, it is concluded that the Respondent had some duty to take reasonable steps to determine prior to the application of Solis, if the Complainant’s windows were free of substantial defects. This was not done and to this extent it is concluded there was a violation of A.R.S. §32-1154(A)(3)/A.A.C. R4-9- 108. However, the case is not so clear as to establish a violation of (A)(7). The Complainant did not satisfactorily explain why she replaced the original windows with a different type of window. Had the replacement windows been the same as the original windows, the remaining original windows would not need to be replaced and Solis could be applied to the replacement windows. The Complainant’s current situation of needing to replace the approximately 15 remaining original windows at an asserted cost of $4,000.00 in order to match them to the replacement windows is apparently her own doing. In light of the Complainant’s independent actions, no corrective action by the Respondent is required. Additionally, the Complainant has paid nothing to the Respondent and therefore no restitution to the Complainant is called for. . . . . . . RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter, that the Class C-05 license of the Respondent shall be placed on probation for a period of sixty (60) days. Done this day, May 5, 1998.

_______________________________ ALLEN W. REED Administrative Law Judge

Original transmitted by mail this ____ day of May, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826