ALJDEC decisions subject to certification as final

2021A-05505-CHC-ROC · Registrar of Contractors · 2022-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michelle Ann Byrge,

COMPLAINANT

Window Pro LLC

License No. ROC 234749,

RESPONDENT

No. 2021A-05505-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 16, 2022

APPEARANCES: Complainant Michelle Ann Byrge appeared on her own behalf. Respondent Window Pro LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Window Pro LLC (Respondent) is the holder of License No. 234749 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 15, 2020, Michelle Ann Byrge (Complainant) signed a contract with Respondent for, among other things, the installation of seven window shutters.

On or about October 28, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Mark Nipp. After a jobsite inspection, Investigator Nipp 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 January 24, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item #1: No shutters have been installed.

Investigator’s Observation: Verified

The complainant pointed out the area she was concerned with in the living room and three bedrooms. I saw that there were no shutters installed on the seven windows as agreed in the contract provided by the complainant. A contractor should complete all work as agreed upon. The respondent should correct by appropriate means. Reference Picture(s) 2-5

Governing Rule: A.R.S. § 32-1154(A)(1) Abandonment of a contract or

refusal to perform after submitting a bid on work without legal excuse

for the abandonment or refusal.

Following the issuance of the written directive, Respondent did not install the shutters. After the deadline in the directive expired, Investigator Nipp was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on May 3, 2022. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

An April 20, 2022 order from the Office of Administrative Hearings granted a continuance of the hearing and advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on May 16, 2022.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Nipp testified that, at the jobsite inspection, he reviewed the contract and noted the shutters were included in the contact and had not been installed. Investigator Nipp also stated that, at the time of the compliance jobsite inspection on February 7, 2022, no changes had been made to the project.

Complainant testified that when she entered into the contract in December 2020, Respondent had given her a 12-week timeline for completion. Complainant stated she knew there were supply chain issues, so she was understanding when the project took longer than expected. However, Complainant stated that after not hearing from Respondent for a prolonged period of time, she filed the complaint with the Registrar.

Administrative notice is taken of Respondent’s prior License record on May 18, 2022. Such prior License record reflects that Respondent’s License No. 234749 was first issued on July 3, 2007, and was revoked on February 15, 2022, and on May 12, 2022. Such prior License record also reflects that there were five open complaints and two prior complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 evidence established that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 234749.

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)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 40 days from the date of that certification.

-54864001

001

-137160-45720000Done this day, May 19, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

001

-137160-45720000