ALJDEC decisions subject to certification as final

2008A-23704326-ROC · Registrar of Contractors · 2011-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 10, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent did not appear; the Residential Contractors’ Recovery Fund intervened in this matter and was represented by Assistant Attorney General Elizabeth Campbell.

WITNESSES: Jim Dimond, ROC Inspector Dolores Didiot

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Dolores Didiot seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by defective workmanship of Respondent New Rock Enterprises, Inc. pertaining to an unfinished retaining wall on her property. As noted above, Respondent did not appear. The Fund has denied Complainant’s claim because Complainant used an unlicensed person to perform the corrective work. Complainant disputes the Fund’s position, claiming that the person she hired and the work that was done fall under the “handyman” exemption from licensure. This tribunal entered the claim file received from the Registrar of Contractors into the record, which includes the underlying complaint file. Complainant and the Fund presented testimony and exhibits, including Exhibits 1 through 4 submitted by the Fund and Exhibits A, B, and C, submitted by Complainant. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Decision to deny payout. FINDINGS OF FACT 1. Respondent was the holder of license C-21.196476-R, a specialty residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorized Respondent to perform landscaping and irrigation for residential projects. The license was revoked on July 16, 2009. 2. Respondent defectively and partially built a retaining wall on Complainant’s property. After Complainant filed a complaint with the ROC against Respondent and a hearing was held in April 2009, the ROC issued an Order finding Respondent in violation of the licensing statutes and ordering Respondent to remove the retaining wall or face revocation of the license.[1] The Order found that the wall was, in fact, a retaining wall and that a permit from the local building authority was required in order to build it. That Order became final; Respondent did not remove the wall. 3. Complainant then made a claim to the Fund. In support of her claim, she presented an Invoice from “Handy Man Services/R. McLeod” that shows that McLeod removed the wall for $800.00.[2] McLeod is not a license contractor. The Invoice (Exhibit 3) does not state that McLeod is not a licensed contractor. 4. ROC Inspector Jim Dimond investigated the claim for the Fund.[3] He determined that Maricopa County Planning and Development (“MCPD”), who has authority over the area in which Complainant’s property is located, required a permit for the demolition of the retaining wall.[4] He testified that the grading and drainage of the property could be affected by the removal of the wall and, therefore, a permit was necessary under the Drainage Regulations for Maricopa County, sections 603(8) and 1203(1) published by MCPD in November 2010.[5] 5. Based on Inspector Dimond’s findings, the Fund concluded that a licensed contractor was required to do the work because a permit was required for it. Because Complainant used an unlicensed person, the Fund denied the claim. Complainant requested a hearing. 6. At hearing, Inspector Dimond testified in support of his findings. Complainant argued against the validity of Inspector Dimond’s testimony, but provided no evidence contradicting his findings. 7. The evidence shows that a permit was required to remove the wall. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that the claim meets the requirements for payout from the Fund.[8] Complainant has not met that burden. 2. Complainant is an injured person within the definition in A.R.S. § 32-1131(3). 3. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award an appropriate payment to Complainant from the Fund pursuant to A.R.S. §§ 32-1132 and 32-1154(F). 4. Respondent caused damage to Complainant’s property by poor workmanship. 5. The statute establishing the Residential Contractors’ Recovery Fund states that “[a]ctual damages shall not be established by bids supplied by or the value of work performed by a person or entity that is not licensed pursuant to this chapter and that is required to be licensed pursuant to this chapter.” There is no dispute that McLeod is not a licensed contractor, the only question is whether he was required to be licensed in order to perform the demolition of the wall. 6. The “handyman exemption” in A.R.S. § 32-1121(A)(14) allows unlicensed persons to perform certain contracting work for less than $1,000.00 aggregate price per job. The exemption does not apply, however, if a permit is required for the work.[9] 7. Because a permit was required to demolition the wall, the person doing the work was required to be licensed by the ROC. Because McLeod was not a licensed contractor, Complainant’s actual damages are not established by McLeod’s invoice.[10] 8. Complainant has failed to establish her actual damages by appropriate evidence. 9. No award should be issued. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors deny Complainant’s Residential Contractors’ Recovery Fund claim.

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 40 days from the date of that certification.

Done this day, August 25, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Exhibit 3. [3] He was also the inspector for the underlying complaint. [4] Exhibit 4. [5] Published at http://www.maricopa.gov/planning/BuildingServices/docs/pdf/Drainage_Regs.pdf . [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949); Arizona Administrative Code (A.A.C.), OAH Rule R2-19-119(B). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). [8] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [9] A.R.S. § 32-1121(A)(14)(a). McLeod also did not comply with subsection (A)(14)(c) which requires that he state “not a licensed contractor” on his invoice. [10] A.R.S. § 32-1132(A)(third sentence).

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