ALJDEC

01F-RF0200-ROC · Registrar of Contractors · 2001-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 9 April 2001 APPEARANCES: Complainant: Monica Wambaugh, wife of Complainant. Respondent: Bruce Wiegand, Member of Sun Craft Quality Builders, LLC (“Suncraft”); Claudia Wiegand, Member of Suncraft Others: Mel Purchase, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ This hearing was held to determine the appropriate award to be paid to Complainant out of the Arizona Registrar of Contractors’ (the “ROC”) residential contractors’ recovery fund (the “Fund”). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, including the post-hearing memoranda submitted by the parties, the undersigned Administrative Law Judge hereby issues the following Findings of Fact, Conclusions of Law and Recommended Decision to the ROC.

FINDINGS OF FACT 1. Complainant and Respondent entered into a contract whereby Respondent agreed to build an addition to Complainant’s residence and undertake other extensive remodeling of the home for the sum of $179,899. Complainant paid Respondent $177,030 on the contract. 2. Respondent’s work on the project was far below the minimal standards of workmanship set forth in AAC R4-9-108. As a result, Complainant filed a complaint with the ROC. Lewis King, an ROC inspector, was assigned to complete an investigation of the complaint. As a result of his job site inspection, Mr. King issued a corrective work order dated 30 November 1999 directing Respondent to repair or complete the items listed in the corrective work order. 3. Respondent failed to satisfactorily complete all the repairs and work listed in the corrective work order. As a result, ROC Citation 00- 0520 was issued to Respondent on 1 February 2000 ordering Respondent to answer and show cause as to why Respondent’s license should not be disciplined. 4. An administrative law hearing regarding the citation was held on 27 April 2000 before Administrative Law Judge Greg Hanchett, OAH Case No. 00F-0520-ROC. As a result of that hearing, the ROC ordered that Respondent’s license be revoked effective 5 July 2000; however, if Respondent paid restitution in the amount of $28,575 before the effective date of the ROC’s order, the case would be closed. No restitution was paid. 5. As a result of the revocation, Complainant sought to recover $20,000 in damages from the Fund. Pursuant to the direction of Mel Purchase, an ROC inspector, Complainant obtained three bids to complete the repairs and complete the work which Respondent had failed to repair and/or complete properly. Complainant obtained bids in the amount of $26,940 from Western Sun Builders, $29,917 from Quality Builders, and $30,770 from Carlson General Contracting, Inc. According to Mr. Purchase’s testimony, the repairs necessitated by Respondent’s failure to properly repair and/or complete work would easily exceed the statutory maximum award of $20,000. 6. At the time that Respondent entered into its contract with Complainant and completed the poor workmanship, Respondent was properly licensed to contract in Arizona. Complainant has been injured as a result of Respondent’s failure to perform its work in accord with the workmanship standards set out in A.A.C. R4-9-108.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. Plaintiff is an injured person as that term is defined in A.R.S. §32-1131 (3). 3. The provisions of ARS §32-1132(A) create the Fund “from which any person injured by an act, representation, transaction or conduct of a residential contractor . . . may be awarded . . . an amount of not more than $20,000.” Arizona Revised Statute § 32-1154(E) provides that the ROC “may” order a award from the Fund where a contractor’s license has been revoked or suspended as a result of a violation and the contractor is unwilling or unable to remedy the violation. 4. The bids obtained by Complainant to repair the poor workmanship of Respondent are reasonable and, in addition to Mr. Purchase’s testimony, demonstrate that the amount necessary to correct Respondent’s poor workmanship will far exceed $20,000. It is important to note that Complainant did not pay the original contract in full, leaving the sum of $2868 as unpaid on the contract. This unpaid portion of the contract should be applied as a deduction from Complainant’s claim for damages. However, even subtracting the unpaid amount from the lowest bid received still leaves an amount in excess of the statutory $20,000 maximum award ($26,940 - $2868 = $24,072). 5. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has demonstrated by a preponderance of the evidence that the cost to repair the damage inflicted upon his home by Respondent’s poor workmanship will exceed $20,000. Accordingly, Complainant is entitled by statute to the maximum statutory award of $20,000.

RECOMMENDED DECISION It is recommended to the ROC that, on the effective date of the ROC’s Order entered in this matter, the ROC commence and finalize payment procedures from the Fund to the Complainant in the amount of $20,000.

Done this day, 11 May 2001

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826