ALJDEC decisions subject to certification as final

2022A-09640-RFA-LS-ROC · Registrar of Contractors · 2023-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors

COMPLAINANT,

Superior Window Coverings LLC

DBA: Shutters and Blinds of Arizona

License No. ROC 324877,

RESPONDENT.

No. 2022A-09640-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 7, 2023

APPEARANCES: Assistant Attorney General Wesley Cox appeared on behalf of the Arizona Registrar of Contractors. Chris Tornabene appeared on behalf of Respondent Superior Window Coverings, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. The Registrar of Contractors (Registrar) issued an award from the Arizona Residential Contractors’ Recovery Fund (Fund) to 15 claimants in the total amount of $160,895.34 on June 20, 2022. The complaints were based acts that occurred during Mr. Tornabene’s time with Bright Lite Home Exteriors (Bright Lite) that led to the recovery fund payouts.

2. The amount of this award was charged against Bright Lite Home Exteriors LLC, License No. ROC 330200.

3. On June 20, 2022 License No. ROC 330200, was automatically suspended by operation of law under A.R.S. § 32-1139(B).

4. The acts or omissions that led to the Fund awards against Bright Lite Home Exteriors LLC occurred from August 29, 2020 through August 25, 2021.

5. At the time of the act(s) or omission(s) that led to the awards from the Fund, Christopher John Tornabene appeared on the license of Bright Lite Home Exteriors LLC, License No. ROC 330200, as a member from July 18, 2020 through June 21, 2021.

6. Christopher John Tornabene currently appears on License No. 324877 of Superior Window Coverings LLC DBA: Shutters and Blinds of Arizona as a Qualifying Party and owner from May 15, 2019 through present.

7. On or about March 25, 2021, Mr. Tornabene gave notice to the partners of Bright Light that he was withdrawing from the partnership. The notice also provided that Mr. Tornabene was withdrawing his 25% equity stake in the company. Mr. Tornabene requested final payment for his contribution to and participation in the company.

8. The Registrar did not receive Mr. Tornabene’s notice until June 21, 2021.

9. On January 9, 2023, the Registrar notified Superior Window Coverings, LLC that it would suspend its license by operation of law, until the Fund was repaid, for the payout in the amount of 160,895.34.

10. Superior Window Coverings requested a hearing regarding the suspension.

11. A hearing was held on July 7, 2023.

12. At hearing, the Registrar presented the testimony of Kyle Nelson, Legal Assistant with the Registrar. Mr. Tornabene testified on behalf of himself.

13. Mr. Tornabene stated that he never wanted to be on the license and that he never signed the Bright Lite license application. Mr. Tornabene stated that there were other individuals who did not want to be on the license that were yet placed on the license. However, it is undisputed that Mr. Tornabene did not notify his partners that he wanted to withdraw from the business until March of 2021. It is undisputed that

Mr. Tornabene had a 25% equity stake in the business.

14. I find Mr. Tornabene’s testimony that he did not agree to be on the license to be unconvincing.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Registrar bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. Respondent bears the burden to establish 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.”

Under A.R.S. § 32-1139(B), any person who is or was, at the time of the act or omission, named on a license that has been suspended because of a payment from the Recovery Fund is not eligible to receive a new license or retain another existing license that also shall be suspended by operation of law, nor shall any suspended license be reactivated, until the amount paid from the Fund is repaid in full, plus interest at the rate of ten per cent a year.

The preponderance of the evidence shows that Chris Tornabene was on the license of Bright Lite Home Exteriors LLC, License No. ROC 330200 at the time that the acts occurred that led to the recovery fund payouts.

Accordingly, License No. 324877 of Superior Window Coverings LLC DBA: Shutters and Blinds of Arizona must be suspended by operation of law until the Fund is repaid in full or until Christopher John Tornabene is removed from the license.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that License No. 324877 of Superior Window Coverings LLC DBA: Shutters and Blinds of Arizona by operation of law until

the amount paid from the Fund in Case Numbers 2022-02779, 2022-00830, 2022-00761,2021-06457, 2021-06045, 2021-05872, 2021-05807, 2021-05146, 2021-04967, 2021-04869, 2021-04783, 2021-04633, 2021-04597, 2021-03627, and 2021-02774, plus interest, is repaid to the Registrar, or until Christopher John Tornabene is removed from the license.

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, July 27, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

By: OAH Staff