ALJDEC decisions subject to certification as final

2022A-07248-CHC-ROC · Registrar of Contractors · 2023-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ron Williams,

COMPLAINANT,

Don & Vickie, LLC

DBA: Chandler Screen and Awning

License No. ROC 326030,

RESPONDENT

No. 2022A-07248-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 5, 2023

APPEARANCES: Complainant Ron Williams appeared on his own behalf. Respondent Don & Vickie, LLC, doing business as Chandler Screen and Awning, failed to appear. Arizona Registrar of Contractors Investigator Albert Bernal appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Don & Vickie, LLC, doing business as Chandler Screen and Awning (“Respondent”), is the holder of License No. 326030 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about January 14, 2020, Ron Williams (“Complainant”), on behalf of Greenfield Village Resort, contracted with Respondent to install retractable awnings over the shuffleboard courts. The contract price was $23,354.94, and the contract price was to be honored through April 30, 2022.

On or about December 16, 2021, Complainant, on behalf of Greenfield Village Resort, contracted with Respondent for Respondent to replace the sail awning over the pickleball courts. The contract price was $3,967.00.

On or about February 15, 2022, Complainant, on behalf of Greenfield Village Resort, contracted with Respondent to install a sail shade over the shuffleboard court. The contract price was $1,712.00.

On or about February 15, 2022, Complainant, on behalf of Greenfield Village Resort, contracted with Respondent to install canopies over the shuffleboard court. The contract price was $6,919.00. On or about May 11, 2022, Complainant paid Respondent $3,459.50.

On or about August 24, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the projects.

The Registrar assigned the Complaint to Investigator Albert Bernal. After a September 20, 2022 Jobsite Inspection, at which only Complainant was present, Investigator Bernal issued a Written Directive to Respondent dated September 28, 2022, 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 October 17th, 2022.

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

Compliance Item: 3 - 2 shade covers over shuffleboard court abandoned

Investigator’s Observation: I observe the two awnings were not on site /

and /or installed over the shuffleboard court area.

Respondent shall complete project per original contract agreement, properly executed change orders, and verbal agreements.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Shade over Pickle ball court failed;

Investigator’s Observation: I was shown the shade installed over the pickle ball court and I noted that the two sections of the shade ripped and came apart from the middle posts on both sides and also two holes or rips were made on top of the shade in two different areas. It appeared that this shade was damaged by wind and not due to poor work performed by the Respondent.

Compliance Item: 2 - Retractable awnings failed;

Investigator’s Observation: I was shown two retractable awning protective shields or covers failed. I noted that the covers had the bolts attached to the cover and one broken bracket was place on top of the fallen shield. I observed that the other brackets were still attached to the retractable awning. It appeared these two awning shields were damaged and fell down due to wind and not due to poor work performed by the Respondent.

All errors in original.

On October 18, 2022, the day after the deadline date for compliance with the Written Directive, Investigator Bernal contacted Complainant to inquire as to whether Respondent performed the required corrective work. Complainant responded via email on October 27, 2022, that Respondent had not performed any work after the issuance of the Written Directive. Consequently, Investigator Bernal did not conduct a Compliance Inspection.

Thereafter, Investigator Bernal forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(8), and A.R.S. § 32-1154(A)(22).

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

The hearing of this matter was scheduled to convene on January 5, 2023, at 1:00 p.m., pursuant to the Notice of Hearing issued by the Registrar on November 30, 2022. On December 6, 2022, the Tribunal issued on Order Setting Hearing Via Google Meet. That Order was issued to Respondent’s email address of record. On December 29, 2022, the Tribunal issued a second Order to the parties regarding the scheduled hearing and provided the Google Meet link once again. That Order was issued to Respondent’s email address of record as well.

Respondent did not appear for hearing through an authorized member, employee, or attorney. At the time of hearing, Investigator Bernal attempted to contact Respondent at the phone number Respondent provided to the Registrar, however, Respondent was not able to be reached. Respondent did not contact the Office of Administrative Hearings to indicate any cause for the absence or delay. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Bernal testified consistently with his findings contained in the Written Directive. Investigator Bernal also referenced his Jobsite Inspection Notes and the photographs he took at the Jobsite Inspection that illustrate the items of Complaint. Investigator Bernal opined that the damages were caused by the wind. However, Investigator Bernal also testified that he could not determine whether the damage would have occurred if the straps on awnings had been reinforced. Further, Investigator Bernal had no way to determine if the brackets broke due to inferior quality of materials. Investigator Bernal further testified that the Registrar has no jurisdiction over warranties.

Complainant testified that the shade structure over the pickleball courts was less than six months old when it sustained the damage. At the time of installation, Complainant spoke with the installers and objected to the way in which the installation was performed. Respondent’s installers assured Complainant that the installation and structure were warrantied for ten years. Complainant testified that notwithstanding such assurances, Respondent has not honored the warranty and has not performed any repairs.

Regarding the retractable awning over the shuffleboard courts, Complainant testified that he did not receive the written warranty from Respondent, and therefore, has no information regarding how to repair the awning. Complainant further testified that Respondent will not respond to his inquiries.

Complainant testified that notwithstanding having paid Respondent $3,459.50 toward the installation of canopies over the shuffleboard court, Respondent has failed to perform this work, has not responded to Complainant’s requests to perform the work, and consequently, Complainant was compelled to hire another contractor to perform the scope of work he contracted with and paid Respondent to perform. Respondent has not refunded the deposit paid.

Administrative notice is taken of Respondent’s prior License record on January 11, 2023. Such prior License record reflects that Respondent’s License No. 326030 was first issued on August 30, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent failed to complete the project per the terms of its contract for the installation of the canopies over the shuffleboard courts. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The evidence established that Respondent did not complete the contract for the installation of the canopies over the shuffleboard courts notwithstanding having been paid half the contract price as a down payment for the work, and would not respond to Complainant’s requests to have the work performed. Therefore, Complainant established that Respondent failed to complete the project for the price stated in the contract, in violation of A.R.S. § 32-1154(A)(8).

The evidence established that Respondent did not complete the corrective work following the issuance of the Written Directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 326030 for a period of seven (7) days.

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 (30) 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)(7), 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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, January 12, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

[email redacted]

Albert Bernal

[email redacted]

Don & Vickie LLC

DBA: Chandler Screen and Awning

[email redacted]

Ron Williams

[email redacted]

By: OAH Staff

-54864001

001

-137160-45720000