ALJDEC - Licensing
2023A-02350-CHC-ROC · Registrar of Contractors · 2023-10-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Andrea Jeanine Heiberg,
COMPLAINANT
v.
Sunset Shutters LLC
DBA: Window Pros AZ
License No. ROC 219821,
RESPONDENT
No. 2023A-02350-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 27, 2023
APPEARANCES: Complainant Andrea Jeanine Heiberg appeared via Google Meet on her own behalf. Respondent Sunset Shutters LLC was represented by Tyler S. Woods who appeared via Google Meet. Investigator Mark Nipp appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Sunset Shutters LLC. (Respondent) is the holder of License No. 219821 issued by the Arizona Registrar of Contractors (Registrar).
On or about December 9, 2021, 2021 Andrea Jeanine Heiberg (Complainant) agreed to have Respondent install shutters in her residence. The total cost was to be $12,000.00, and Complainant paid $6,000.00 as a down payment.
On or about February 21, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project.
The Registrar assigned the complaint to Investigator Mark Nipp.
On April 12, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1).
On or about April 27, 2023, Respondent filed an Answer with the Registrar, denying the allegation.
On or about May 16, 2023, a Notice of Hearing was issued setting a hearing on June 19, 2023 at the Office of Administrative Hearings, an independent state agency.
After two continuances, the hearing was held on September 27, 2023.
At hearing, Investigator Nipp testified as to the Registrar’s involvement and the above timeline.
Investigator Nipp testified that based on the allegation of abandonment, he did not perform a jobsite inspection, did not prepare a Written Directive, and recommended that a Citation be issued.
Further, Investigator Nipp testified that on March 10, 2023, he sent an Acknowledgement Letter to Respondent, informing Respondent of the Complaint. Investigator Nipp also testified that Respondent e-mailed him an explaining the timeline of events.
In addition, Investigator Nipp testified that after reviewing the three order forms, he did not find Respondent’s explanation credible, as there was no verification that the second order was received and acted upon, and the third order had no logo, or address so he did not believe it was a real order.
Finally, Investigator Nipp testified that it was his opinion that waiting over a year for shutters seemed excessive.
Michael Morris testified on behalf of Complainant. Mr. Morris testified that he was involved with most of the interactions with Respondent. He testified that other companies were booked up, while Respondent came out and Complainant paid the deposit the next day. He testified that after a year with no communication, Respondent magically re-appeared after the Complaint was filed.
On cross-examination, Mr. Morris testified that up until March 21, 2023, when he heard from Respondent again, he assumed that Respondent had moved on, so he and Complainant had a new company install the shutters. Mr. Morris testified further that they did not receive any information that the first manufacturer went out of business.
Jose Alvaro Ramirez was Respondent’s owner. He testified that while he takes the orders for shutters and installs the same, he outsources the manufacturing to a third-party. He testified that he immediately placed the order with Arizona Shutters and Cabinets (Arizona Shutters) on December 19, 2021, but that the time to complete the manufacturing could take 12-14 weeks. Arizona Shutters failed to complete the project by May 2022, and the subsequently went out of business, and sent the order to Shutter Solutions on or about September 27, 2022.
Mr. Ramirez testified that once the order was transferred to Shutter Solutions, he requested that Complainant allow him to come back in to re-measure to ensure all information was correct prior to manufacturing. This was completed. Mr. Ramirez then testified that Shutter Solutions informed Respondent that it was overwhelmed and could not complete the order as promised, so in early October 2022, Mr. Ramirez contacted Valle Del Sol Shutters to manufacture the shutters which were completed in March 2023.
Further, Mr. Ramirez testified that on March 21, 2023, he sent Mr. Morris a text message informing him that the shutters were ready to be installed, but Mr. Morris refused and just demanded his money back. Mr. Ramirez also testified that Mr. Morris telephoned him informing Respondent that a new company had installed the shutters. Mr. Ramirez testified that was the first time he knew he was replaced.
Mr. Ramirez testified that even though last time he communicated with Complainant was the end of September/early October 2022, he was still working on obtaining a manufacturer for the shutters.
Finally, Mr. Ramirez testified that although there was a charge dispute and the bank sided with him, he provided a Cashier’s Check to Complainant on July 19, 2023 for the $6,000.00 down payment.
Respondent also offered the testimony of James Gibbs. Mr. Gibbs was the President of Arizona Shutters. Mr. Gibbs testified that he was not able to manufacture the shutters by May 2022, and ultimately closed the business in June 2022. Mr. Gibbs testified however that he was able to transfer the order to Shutter Solutions.
In closing arguments, Complainant argued that Respondent should be ordered to have a provisional license and have a monitor to examine Respondent’s money handling. Respondent argued that no discipline should be taken upon its license, as while it was not effectively communicating with Complainant, it was working on completing the order and in fact, di complete the order and Complainant refused to follow through with the contract.
Administrative notice was taken of Respondent’s prior License record on October 16, 2023. Such prior License record reflected that Respondent’s License No. 219821 was first issued on May 16, 2006, and reflected that there was one open complaint, namely the present complaint, and one resolved/settled case.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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 Vazzano 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).
3. A.R.S. § 32-1154(A)(1) states,
A. The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
The preponderance of the evidence established that Respondent did not abandon nor refuse to perform on the contract. While Respondent admitted that the communication could have been better, Respondent had to go to three different manufacturers to complete the project. This does not show a refusal to perform. In fact from the evidence and testimony presented, it was Complainant who refused to perform once the shutters were ready for installation. Complainant too failed to communicate with Respondent when it hired another company to install/manufacture shutters. Therefore, the tribunal finds that Respondent did not violate 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 close case 2023-02350.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, October 16, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Andrea Jeanine Heiberg
1224 E Derringer Way
Chandler, AZ 85286
[email redacted]
Tyler S. Woods, Esq.
Two North Central Avenue, Suite 2000
Phoenix, AZ 85004
[email redacted]
By: OAH Staff