ALJDEC - Licensing
2024A-03324-CHC-ROC · Registrar of Contractors · 2024-10-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dennis Ray Barker
COMPLAINANT,
v.
Lifetime Windows & Doors LLC
License No. ROC 313945,
RESPONDENT.
No. 2024A-03324-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 2, 2024
APPEARANCES: Justin Fouts, Esq. represented Dennis Ray Barker (Complainant). Andrew Peshek, Esq. represented Lifetime Windows & Doors, LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about April 30, 2021, Complainant entered into a residential remodeling contract with Respondent for the amount of $36,581.50. Complainant paid Respondent $32,266.50.
2. On January 12, 2022, Respondent started work.
3. On October 23, 2023, Respondent stopped work.
4. On or about March 21, 2024, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging abandonment and poor work on the part of Respondent. The Complainant included 31 complaint items.
5. The Registrar assigned the complaint to one of its investigators, Todd Anderson (Investigator Anderson).
6. On March 27, 2024, Investigator Anderson sent a copy of the complaint and job-site notice to Complainant and Respondent by mail and e-mail. Investigator Anderson received a message that the e-mail sent to “david@ Lifetimewindowscolorado
.com” was blocked.
7. Investigator Anderson left a voice mail message with Respondent regarding the complaint and the job-site inspection. Investigator also notified Respondent to look for mail and email copies of the complaint and job-site inspection notice.
8. On or about April 17, 2024, Investigator Anderson conducted a job-site inspection. Investigator Anderson substantiated all 31 complaint items.
9. On April 25, 2024, Investigator Anderson mailed a Directive to Respondent. Through the Directive, the Registrar directed Respondent to correct the 31 complaint items by appropriate means, no later than May 13, 2024.
10. Respondent did not correct the complaint items by May 13, 2024.
11. On May 17, 2024, the Registrar mailed a Citation to Respondent alleging that Respondent violated Ariz. Rev. Stat. 32-1154 (A)(1), (3), and (22); Arizona Administrative Code A.A.C. R4-9-108(B).
12. Respondent filed a timely answer to the Citation.
13. On May 21, 2024, Investigator Anderson received a phone call and e-mail from the Respondent stating that he never received paperwork from the Registrar.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. At hearing, Complainant testified on behalf of himself and presented the testimony of Rhett Turner. Respondent presented the testimony of its general manager, Zahang Li and its production manager, Jeff Callahan. Investigator Anderson testified regarding his investigation of the complaint.
16. Complainant explained that Respondent failed to complete the home remodeling project.
17. Mr. Li stated that Respondent never received notice of the complaint, the job-site inspection, nor the Directive. Mr. Li stated that he corrected Respondent’s mailing address and e-mail address with the Registrar before March of 2024. See the Hearing Audio Record (1255 2024-09-12) - 2.AAC at 29:15 – 33:30 minutes.
18. I find Mr. Li’s testimony to be credible.
19. The evidence presented at hearing shows that the Citation was e-mailed to Respondent’s correct address which included a suite number. See the Registrar’s administrative record, pg. 114-119. While Investigator Anderson stated at hearing that Respondent’s address of record with the Registrar did not include a suite number, there was no evidence provided at hearing to explain why the complaint, the job-site inspection notice, and the Directive were mailed to Respondent’s address without the suite number, but yet, the Citation was mailed to Respondent’s correct address that included the suite number.
20. Mr. Li stated that Respondent did not want to continue work unless a third party reviewed the project and determined the work that needed to be performed to complete the project.
21. Administrative notice is taken of Respondent’s prior License record on October 2, 2024. Such prior License record reflects that Respondent’s license number 313945 was first issued on July 11, 2017, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Arizona Administrative Code R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. section 41-1092.07(G)(3).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. section 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
A.A.C. section R49108(A) provides that “A contractor shall perform all work in a professional manner.”
The Administrative Law Judge may consider Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
Construction is not a perfect art, however, and contractors generally must
be afforded an opportunity to correct their potential statutory violations before their licenses may be suspended or revoked.
The preponderance of the evidence shows that Respondent did not receive notice of the complaint, the job-site inspection, and the Directive although Respondent had updated its mailing and e-mail addresses with the Registrar before the complaint was filed. There was no evidence provided at hearing to explain why the complaint, the job-site inspection notice, and the Directive were mailed to Respondent’s address without the suite number, but yet, the Citation was mailed to Respondent’s correct address that included the suite number. Therefore, the Administrative Law Judge concludes that Respondent had valid justification for failing to comply with the Directive. As a result, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(1) and (3), namely, A.A.C. R4-9-108(A), and A.R.S. 32-1154(A)(22).
RECOMMENDed order
In view of the foregoing, it is recommended that this matter be dismissed.
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 2, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Justin Fouts, Esq.
Degnan Law Firm
[email redacted]
Andrew R. Peshek, Esq.
WONER HOFFMASTER PESHEK & GINTERT, PC
[email redacted]
[email redacted]
By: OAH Staff