ALJDEC - Licensing

2023A-08023-CHC-ROC · Registrar of Contractors · 2024-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas Posen,

COMPLAINANT

v.

Lee Arlen Mitchell Drury

DBA: Mountain Country Shutters & Shade,

License No. ROC 289532,

RESPONDENT

No. 2023A-08023-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 30, 2024

APPEARANCES: Complainant Thomas Posen appeared via Google Meet. Registrar of Contractors Investigator Cliff Corlett appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Lee Arlen Mitchell Drury (Respondent) is the holder of License No. 289532 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 15, 2021, Thomas Posen (Complainant) and his wife Tina Posen, agreed to have Respondent install motorized window coverings in their house. The contracted amount was $30,533.50.

On or about July 17, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Cliff Corlett. The jobsite inspection was performed on August 22, 2023.

Investigator Corlett then issued a written directive on or about October 2, 2023, 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 or before October 20, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - The dining room motorized shades as well as the Dongal, and connection to our Home Automation, listed at the bottom of the contract, have not been done.

Investigator’s Observation: The Respondent agreed at the August 9, 2023 onsite meeting to provide new color samples and get the contracted materials ordered to complete this project. To date (Oct. 2, 2023) the ROC has received no documents confirming completion of the contracted work.

RESPONDENT SHOULD PROPERLY PROVIDE AND INSTALL THE CONTRACTED MATERIALS.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On February 12, 2024, Investigator Corlett conducted a Compliance Jobsite Inspection. Investigator Corlett noted the following:

Compliance Jobsite General Notes: On October 2, 2023 the Registrar of Contractors issued a Written Directive for case 2023-08023 to complete certain construction operations at Complainants residence located at 2781 Oakridge Dr. Lake Havasu City. That directive had a compliance due date of October 20, 2023.

The parties did agree to an extension of time to comply with directive. Several emails were copied to the ROC regarding incorrect materials and or product inavailability.

On or about the ROC contacted the Complainant for a status update. On 2-9-24 the Complainant responded and requested the matter proceed to an Administrative Hearing.

Compliance Findings: RESPONDENT IS NOT IN COMPLIANCE...

(All errors contained in the original).

On February 13, 2024, 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), and A.R.S. § 32-1154(A)(22).

On or about February 28, 2024, Respondent e-mailed an Answer to the Registrar.

On or about March 14, 2024, a Notice of Hearing was issued setting a hearing on April 30, 2024, at the Office of Administrative Hearings, an independent state agency. The Registrar mailed copies of the Notice of Hearing to the parties at their addresses and email addresses of record.

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.

At hearing, Investigator Corlett testified as to the Registrar’s involvement and the above timeline.

Investigator Corlett testified that Respondent had some difficulty in obtaining the samples and saw numerous emails between the parties granting extensions.

In addition, Investigator Corlett testified that when he contacted Complainant in early February, Complainant informed him that the project had still not been completed.

Investigator Corlett testified further that when he performed the prehearing inspection on April 12, 2024, he observed that Respondent installed brackets on the windows and sliding glass doors, but there were still no shades hanging from the same.

Tina Posen testified that they were very patient with Respondent as he went through numerous personal challenges during the job, but their patience had run out. Ms. Posen testified that the “dongal” was incomplete and there were no vertical shades installed on the sliding glass doors.

Further, Ms. Posen testified that there was a period of time where there was no contact from Respondent for a six month period.

Finally, Ms. Posen testified that they still owed Respondent $2,000.00, but that Respondent wanted to charge them more than that to install the remaining shades.

Administrative notice was taken of Respondent’s prior License record on May 15, 2024. Such prior License record reflected that Respondent’s License No. 289532 was first issued on February 6, 2014, and was suspended for non-renewal on March 1, 2024. The License record further reflected that there was one open case, 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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The dining room motorized shades, “Dongal”, and the connection to the home automation system had not been completed per the contract. 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 Respondent failed to complete the corrective work following the Directive being issued. Per Investigator Corlett, and Complainant’s testimony, the brackets had been installed, but there were no shades on the sliding doors. 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. 289532 for a period of ten 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 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.

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, May 15, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Lee Arlen Mitchell Drury

[email redacted]

Thomas Posen

[email redacted]

By: OAH Staff