ALJDEC decisions subject to certification as final
2020A-04751-CHC-ROC · Registrar of Contractors · 2021-04-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Patrick Thompson ,
COMPLAINANT
v.
Page Brittany Mason
DBA: Sun Devil Shutters,
License No. ROC 309429,
RESPONDENT
No. 2020A-04751-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: April 12, 2021
APPEARANCES: Patrick Thompson on his own behalf; Page Brittany Mason for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On March 12, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 12, 2021 at the Office of Administrative Hearing.
Through its Notice of Hearing, ROC alleges that Page Brittany Mason d.b.a. Sun Devil Shutters may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). Respondent holds license No. 309429 issued by ROC.
Complainant is Patrick Thompson.
Mr. Thompson appeared and testified on his own behalf, and presented the testimony of his wife Allie Donker. Ms. Mason appeared and presented the testimony of Adan Perez.
ROC investigator Stephen Lawton also testified.
In June 2020, Complainant and Respondent entered a contract that called for Respondent to manufacture and install shutters at Complainant’s house.
The shutters were installed but Complainant was dissatisfied with the quality. Respondent made attempts to correct the deficiencies both at the home and after removing the shutters and working on them at its shop.
After the shutters were reinstalled, on or about October 6, 2020, Complainant filed with ROC a complaint against Respondent alleging poor work on Respondent’s part. Complainant’s complaint shows that the contract price was $6610, of which he had paid $3115.
ROC’s Mr. Lawton conducted a jobsite inspection on November 3, 2020.
On November 16, 2020, ROC issued to Respondent a Directive that provided in part:
.... You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 16, 2020.
RESTRICTIONS
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DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: Shutter louvers don't open properly. Some of the louvers are so tight you can Barely open them.
Investigator’s Observation: It was observed and verified that the shutters do not open properly and that the louvers are tight and hard to open.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 2: Poor paint job. There are paint runs & spots where the shutters weren't painted all over.
Investigator’s Observation: It was observed and verified that there are paint runs and areas not painted.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 3: Cracked panel. One of the panels is cracked at the top.
Investigator’s Observation: It was observed and verified that a louver was cracked by the front door.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 4: Gaps. Many of the shutter panels are too small for the windows & there are gaps. Sunlight comes through these gaps. The gapping between the frames & the panels is also not even
Investigator’s Observation: It was observed and verified that the gapping between panels and frames are not even. Also, reveals are not even causing binding of the shutter doors.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 5: Hinges are stretched.
Investigator’s Observation: It was observed and verified that the hinges were appeared to be stretched.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 6: Many of the shutter panels have to be forced to shut.
Investigator’s Observation: It was observed and verified that the shutter doors in various location were hard to close due to the fact of binding from reveals being too tight.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 7: Frames & shutter panels have damage. There are gouges & nicks in the frames & panels that weren't sanded & repainted to fix correctly. They were just painted over so you can still see these flaws.
Investigator’s Observation: It was observed and verified that frames and panels have damage and appear to be painted over without proper preparation prior to painting.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 8: Broken louvers. There are louvers that are damaged & need to be fixed/replaced.
Investigator’s Observation: It was observed and verified that there are louvers damage in various locations.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 9: Paint/drywall damage from where the installers ripped down our temporary blinds. We asked them not to touch these & we would remove them later.
Investigator’s Observation: It was observed and verified that there were paint/drywall areas that were damaged and not corrected.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 10: Nail holes from installation weren't properly patched.
Investigator’s Observation: It was observed and verified that nail holes from installation were not properly patched.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 11: Door magnets won't hold all the panels closed tightly.
Investigator’s Observation: It was observed that there were door panels that were not held tight to the magnets.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
Complaint Item 12: Panels are sagging & sitting on lower frame.
Investigator’s Observation: It was observed and verified that panels are sagging and dragging on lower frame.
Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108
On January 21, 2021, Mr. Lawton conducted a compliance jobsite inspection at which time his opinion was that none of the complaint items had been properly corrected.
ROC issued to Respondent a Citation dated February 2, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Respondent acknowledged that there were deficiencies in its work. Mr. Perez testified that to resolve the matter Respondent had offered to refund Complainant’s money, uninstall the shutters, and pay to have a licensed, bonded contractor to make any required drywall repairs.
Mr. Perez testified that Complainant was unwilling to accept that offer and instead wanted to hire a contractor himself. Mr. Perez testified that Respondent was unwilling to allow Complainant to hire its own contractor because Respondent would not have control of the project and it was concerned that this contractor might damage Complainant’s home and Respondent’s shutters.
Complainant’s exhibit 6 is an email chain showing the parties attempts to settle the matter.
Those emails show that Complainant requested a refund of the $3115 he had paid, that he keep the shutters (although he planned to remove them and have new shutters installed), and $2500 to cover the cost to remove the shutters, to make drywall and other repairs, and for carpet cleaning. Respondent was willing to refund to Complainant his $3115, but wanted to remove the shutters itself (once Complainant’s new shutters arrived) and it wanted to pay the drywall contractor directly. Complainant did not accept that offer, and Respondent offered to refund the $3115 and pay to Complainant the $2500 for drywall and other repairs with payment being made on the date that Respondent picked up the shutters. Complainant was unwilling to agree to those terms, because he required the $5615 upfront so that he could order new shutters and he was unwilling to have Respondent’s shutters removed until the new shutters were almost ready to install. Respondent initially agreed to Complainant’s terms, but subsequently informed Complainant that it was unwilling to make the payment without its shutters being returned. Complainant subsequently informed Respondent that the drywall repairs would cost $3522.77 and that it would cost him $400 to have Respondent’s shutters removed.
Although not explicit in the emails, this new information from Complainant would effectively raise the proposed settlement amount from $5615 to $7037.77.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
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3. Violation of any rule adopted by the registrar.
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22. Failure to take appropriate corrective action to comply with this 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Respondent acknowledges that its work was deficient and the preponderance of the evidence shows that Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).
Respondent did not comply with ROC’s Directive within the time ordered, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Because Respondent has committed a workmanship violation, ROC has authority to discipline its license. ROC’s website shows that Respondent has no other complaints against its license, either past or present, which is a factor in mitigation.
Under these facts and circumstances, it is appropriate to require Respondent to pay to Complainant $5615 as restitution, which covers Complainant’s deposit of $3115 plus $2500 for the required drywall and other repairs as initially quoted by Complainant. See Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990)(ROC may order a party to pay restitution as a condition to the reinstatement of a suspended license.).
Respondent should also be required to pay a $200 civil penalty for Respondent’s violation of section 32-1154(A)(22).
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Page Brittany Mason d.b.a. Sun Devil Shutters’ license number 309429 until such time that the Registrar receives proof that Respondent has paid to Complainant Patrick Thompson $5615 as restitution for Respondent’s violation of Ariz. Rev. Stat. section 32-1154(A)(3);
IT IS FURTHER RECOMMENDED that Respondent Page Brittany Mason d.b.a. Sun Devil Shutters be required to pay to the Registrar of Contractors a $200 civil penalty for Respondent’s violation of Ariz. Rev. Stat. section 32-1154(A)(22).
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 is forty days after the date of that certification.
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-137160-45720000Done this day, April 30, 2021.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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