ALJDEC decisions subject to certification as final

2009A-4779626-ROC · Registrar of Contractors · 2011-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: April 28, 2011, at 1:00 p.m. APPEARANCES: Complainant Denise S. Ferrand did not appear; Respondent G P M Renovations, L.L.C. appeared through Paul Richard Myers, its qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In November 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC235324, Class C-61 for residential limited remodeling and repair contracting to G P M Renovations, L.L.C. (“Respondent”). On or about October 29, 2008, the Registrar received a complaint from Denise S. Ferrand (“Complainant”) regarding Respondent’s repairs to her house at 6815 East 12th Street in Tucson, Arizona 85710. Complainant provided her mailing address as the same as the jobsite address. The Registrar designated Complainant’s complaint as Case No. T09-0477. Complainant asserted in the complaint in Case No. T09-0477 that her mortgage company paid Respondent $28,378.63, Respondent paid her $5,090.00, and Respondent gave her an invoice in the amount of only $16,664.39. Complainant requested that the Registrar require Respondent to pay her $7,124.24, the difference between the amount of the payments that it had received from her mortgage company and the total of its invoice and payments to her. Complainant requested a hearing on her complaint and on May 8, 2009, the Registrar issued a Citation and Complaint against Respondent in Case No. T09-0477, charging a violation of former A.R.S. § 32-1154(A)(7).[1] After Respondent failed to file a timely written answer to the Registrar’s Citation and Complaint, on September 15, 2009, the Registrar issued a Decision and Order in Case No. T09-0477, finding that by failing to answer the Citation and Complaint, Respondent admitted the charged violation of A.R.S. § 32-1154 and suspending Respondent’s license until it provided proof that it “appropriately rectified the issues involved and detailed in the Complaint.” On or about October 27, 2009, Respondent submitted written correspondence to the Registrar in Case No. T09-0477, asserting that it had performed all work for Complainant in a timely manner and in compliance with professional standards, and that had paid Complainant more than $5,000.00, but that Complainant was not satisfied. Respondent requested that the Registrar close the complaint in Case No. T09-0477. On or about November 24, 2009, Complainant submitted written correspondence to the Registrar in Case No. T09-0477, asserting that Respondent had not paid her any money since October 9, 2008, when Respondent admitted that it owed Complainant $7,124.24 for her mortgage company’s overpayment. Complainant asserted further that Respondent had stopped accepting her telephone calls and had refused to respond to her letters. Complainant asserted further that Respondent had not rectified the situation. Complainant requested that the Registrar not close Case No. T09-0477 but, instead, allow her to pursue a claim for compensation from the Residential Contractors’ Recovery Fund. The address that Complainant provided on her November 24, 2009 letter to the Registrar was the same address as the address provided on her October 29, 2008 complaint form. On January 7, 2011, the Registrar redesignated Case No. T09-0477 as Case No. 2009-4779626 and issued an Order Setting Compliance Hearing in the expedited course of docketing in the Phoenix area. The Registrar sent a copy of its Order Setting Compliance Hearing to Complainant at the address on her November 24, 2009 correspondence and on her October 29, 2008 complaint. The Registrar referred Case No. 2009-4779626 to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing on Respondent’s compliance with the Registrar’s September 15, 2009 Decision and Order. On January 21, 2011, the Registrar issued a Notice of Compliance Hearing in Case No. 2009-4779626, setting a hearing in the OAH on April 28, 2011, at 1:00 p.m. The Registrar mailed a copy of the Notice of Compliance Hearing to Complainant at the address on her November 24, 2009 correspondence and on her October 29, 2008 complaint. A compliance hearing was held on April 28, 2011, in Case No. 2009- 4779626. Complainant did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed twenty minutes to allow Complainant additional travel time, she did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Complainant did not present any evidence to controvert Respondent’s evidence of compliance with the Registrar’s Decision and Order in Case No. T09-0477. Respondent appeared for the hearing in Case No. 2009-4779626 and presented the testimony of three witnesses: (1) Paul Richard Myers, its qualifying party and a member; (2) Gary Lee Myers, another member; and (3) Mark Curtis, another member. Hearing Evidence After Complainant’s home was damaged by water, her insurance company agreed to pay to repair the damage. The original estimate that Respondent submitted to Complainant to repair the damage was $28,378.96, and Complainant submitted this estimate to her insurance company. After Respondent performed the work, it submitted an invoice to Complainant in the amount of $16,664.39. Complainant did not submit Respondent’s invoice to her insurance company, and it issued a check to Respondent in the amount of the original estimate. Respondent contacted Complainant’s insurance company about the overpayment, but the insurance company told Respondent that it was only concerned about covering at least the full cost of repairs, not about any overpayment. Respondent paid Complainant a total of $6,200.00 by check or in cash. Respondent had to pay taxes and overhead on the full amount of Complainant’s insurance company’s payment. At some point, Complainant prohibited Respondent from contacting her. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] The Notice of Compliance Hearing that the Registrar mailed to Complainant at the address that she provided on her complaint and on subsequent correspondence was reasonable, and Complainant is deemed to have received the Notice of Compliance Hearing.[3] Respondent bears the burden of proof and must establish that it complied with the Registrar’s Decision and Order in former Case No. T09-0477 by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Respondent established in the compliance hearing in Case No. 2009-4779626 that it rectified the issues involved and detailed in Complainant’s complaint to the Registrar in former Case No. T09-0477. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the complaint in Case No. 2009-4779626 (former Case No. T09-0477) be closed against Respondent G P M Renovations, L.L.C.’s License No. ROC235324, Class C-61. Done this day, May 16, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This statutory subsection formerly included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [2] See 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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