ALJDEC decisions subject to certification as final
2021A-06807-CHC-ROC · Registrar of Contractors · 2022-05-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Amy Jacobson,
COMPLAINANT,
v.
Window Pro LLC
ROC License No. 234749,
RESPONDENT.
No. 2021A-06807-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 02, 2022 at 1:00 PM.
APPEARANCES: Amy Jacobson (“Complainant”) appeared on her own behalf. Mark Nipp appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Blake Bennett appeared on behalf of Window Pro LLC (“Respondent”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On July 03, 2007, the Registrar issued License No. 234749 Specialty Dual CR-65 Glazing contracting license to Respondent. The license was revoked on February 15, 2022. Blake Ivan Bennett is the Qualifying Party/Member on the license. Respondent’s address of record for the license is 2669 E. Desert Ln. Gilbert, AZ 85234. Respondent has an active $6,750.00 surety bond on the licensed issued by RLI Insurance Company effective September 02, 2020. The license has been disciplined on one (1) prior occasion, and there are six (6) one open complaints against the license; one of which is presumably Complainant’s.
On December 21, 2021, the Registrar received a brief narrative complaint from Complainant against Respondent’s License No. 234749 alleging abandonment of their project. The Registrar designated it Complaint No. 2021-06807 and assigned to Mark Nipp (“Investigator Nipp”) for investigation.
On January 07, 2022, the Registrar advised Respondent of Complaint No. 2021-06807 and requested a written response within ten (10) days. Respondent did not reply.
On February 02, 2022, Investigator Nipp issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on February 15, 2022, at 11:00 a.m.
On February 15, 2022, Investigator Nipp conducted a review of the contract executed between the parties and inspected the project site. Respondent was not present. Investigator Nipp took 10 photographs of the project site. When he was finished, Investigator Nipp drafted his Inspection Notes. Ultimately, Investigator Nipp identified that Complainant’s narrative complaint contained 1 specific complaint item; that Respondent was to install a total of seventeen (17) shutters, which he substantiated. Specifically, Investigator Nipp determined that no materials had been delivered to the project site, and no evidence of work on the project was visible. Investigator Nipp concluded that Respondent’s failure to perform on the project amounted to abandonment in violation of Ariz. Rev. Stat. § 32-1154(A)(1).
On February 15, 2022, Investigator Nipp escalated the complaint to the Registrar’s legal department with the issuance of a Citation Recommendation.
On February 22, 2022, the Registrar issued a Citation to Respondent for alleged violation(s) of Ariz. Rev. Stat. § 32-1154(A)(1). Respondent was given until March 09, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154 and 32-1155.
On March 09, 2022, the Registrar received Respondent’s Answer. In pertinent parts, Mr. Bennett noted he was awaiting the release of materials he had ordered for Complainant’s project from “the harbor in California.” He alleged that he was “getting a new container here in 4 weeks with several shutter orders on it which I know a week before the container ships to me which orders on it.” Mr. Bennett feigned control over the supply chain/shipping issue, but admitted that he did have control over his communications with Complainant and advised that he would give her notice about material delivery once he received a shipping confirmation.
On March 16, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on May 02, 2022. Per the March 25, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(1)
Hearing Evidence
Complainant testified on her own behalf and called Investigator Nipp as a witness. Respondent declined to provide testimony or exhibits. The Registrar’s agency file was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 8738 E. Voltaire Ave. Scottsdale, AZ 85260.
On March 11, 2021, Complainant and Respondent entered into a $10,555.00 for the fabrication and installation of 17 custom window shutters.
The shutters were to be installed as follows: 3 in the dining room, 3 in the piano room, 3 in three guest bedrooms, 1 in an office, and 7 in the master bedroom.
Delivery was estimated June 03-17, 2021; 10 to 12 weeks from the date the contract was signed by the parties.
Complainant paid $5,000.00 towards the project as a down payment. Respondent never performed any work on the project.
On July 13, 2021, Complainant inquired about the status of the shutters and Respondent advised that he still had not been provided with a tracking number for their shipment and delivery.
Complainant again inquired with Respondent on August 19, 2021, and August 27, 2021. Respondent did not reply.
On August 30, 2021, Complainant inquired about the status of the shutters and was notified by Respondent the following day that they were “experiencing a delay due to a hold up at the harbor at [California].” Respondent advised Complainant that materials had been “released” but that it was awaiting shipping information.
On September 16, 2021, Respondent advised Complainant that the materials at issue had been shipped, and were expected to arrive within 7 to 10 days.
On or about October 15, 2021, Complainant inquired about the status of the shutters but received no response from Respondent.
On October 21, 2021, Respondent advised that Complainant’s materials were “caught up in a trucking bottle neck,” so a tracking number could not be provided.
Complainant again inquired with Respondent on November 29, 2021, to which Respondent replied with an apology for his “lack of communication” and advised that he would obtain shipping information that same week.
On December 06, 2021, Complainant again inquired about the status of the shutters. Respondent did not reply.
On February 04, 2022, Mr. Bennett emailed the Registrar regarding several pending complaints against Respondent’s license, in pertinent parts, as follows:
“I have several of the complaints shutters getting installed next week and have already spoken to them and scheduled install. Shutters are finally getting released from the harbor and coming in which is amazing and I can’t wait to install all their shutters here soon.”
A Written Directive from the Registrar was not issued to Respondent in this matter because its license was revoked the same day of the jobsite inspection.
A prehearing jobsite inspection was not conducted because Complainant confirmed that no work had been done as of March 25, 2022.
As of the date of the hearing, Complainant’s materials had not been delivered and Respondent had not issued a refund for Complainant’s deposit.
Neither party provided a closing argument.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”
The material facts in the case at bar are not in dispute.
It is undisputed that the Complainant paid Respondent $5,000.00 towards labor and material fabrication and installation for 17 custom window shutters. It is also undisputed that Respondent never produced the materials or performed any work on the project. It is further undisputed that Respondent did not refund Complainant’s deposit.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete the project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain its burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance on this project. It is a factor in mitigation that delivery was supposed to occur June 03-17, 2021, and Respondent has failed to produce the materials 11 months later or issue Complainant a refund.
Because Complainant has established Respondent’s violation(s) of Ariz. Rev. Stat. § 32-1154(A)(1), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
Complainant may petition the Registrar’s Recovery Fund for financial recompense this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, ROC License No. 234749, as issued to Respondent Window Pro LLC, be revoked based on its violation(s) of Ariz. Rev. Stat. § 32-1154(A)(1).
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.
Done this day, May 11, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary