ALJDEC decisions subject to certification as final

2009A-7100413-ROC · Registrar of Contractors · 2011-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent; the Residential Contractors’ Recovery Fund intervened in this matter and was represented by Assistant Attorney General Montgomery Lee.

WITNESSES: James Westfall Tom Sandoval, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant requested a hearing to appeal a proposed payout by the Residential Contractors’ Recovery Fund (“the Fund”). The Fund has issued notice that it intends to make a payout to Complainant of $15,252.90. Complainant asserts that this amount is too low and requests $21,511.37. As noted, Respondent did not appear and has not participated in the process. This tribunal entered the Fund claim file received from the Registrar of Contractors into the record. The claim file includes the underlying complaint file, ROC Complaint Number P09-0113, which is the basis for the payout. Complainant appeared and testified, submitting Exhibits A and B which were admitted into evidence in addition to the claim file. ROC Inspector Tom Sandoval testified for the Fund in support of the recommendation for payout. The Fund offered Exhibits C and D, which were admitted. Based upon the record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order for payout in the amount of $15,252.90. FINDINGS OF FACT 1. Respondent was the holder of license C-42.165131-R. The license was revoked in December 2009 as a result of Respondent’s default in the underlying complaint (P09-0113) filed by Complainant. That complaint concerned poor workmanship with regard to a metal roof that was installed by Respondent and subsequent water damage to the interior wood floor when a portion of the roof blew off the home during a storm. 2. Complainant filed a claim with the Fund in December 2009, seeking $24,251.47 for damages caused by Respondent. Complainant provided bids from licensed contractors to show the amount of his damages. Inspector Tom Sandoval, who had performed a jobsite inspection and issued a Corrective Work Order (CWO) in the underlying matter, reviewed the claim and the bids, and recommended that the Fund pay Complainant the amount of $15,252.90. 3. Complainant testified that a portion of the roof had been immediately repaired in July 2008 for $4,200.07. The Fund does not dispute that amount and agrees that it is part of Complainant’s damages. Complainant testified that the intent of that repair was that it be temporary and not a permanent repair. He is seeking $15,052.90 at this time for replacement of the entire roof, including the portion that has already been repaired. In support of his case, Complainant submitted Exhibit B, a letter from the roofing contractor who proposes to replace the entire roof. The letter states that the entire roof needs to be replaced so that the contractor can give a full warranty to Complainant for the entire roof. Thus, Complainant is seeking $19,252.97 for the roof damages, which includes payout for both the repair made in July 2008 and the proposed replacement of the entire roof. 4. The Fund objects to replacement of the entire roof. Inspector Sandoval testified that the July 2008 repair is not temporary and does not need to be replaced. The Fund asserts that the July 2008 replacement is appropriate for payout as a permanent repair but not as a temporary repair. Therefore, the Fund proposes payout for the July 2008 repair and for replacement of the remainder of the roof. That amounts to $15,052.90 ($4,200.07 for the July 2008 repair and $10,852.83[1] for replacement of the rest of the roof) for the roof portion of the claim. 5. This tribunal finds that the evidence does not support Complainant’s claim that the entire roof needs replacement. Inspector Sandoval’s opinion is given more weight on this issue than that of the contractor who gave the bid. The contractor has a financial incentive to replace the entire roof, whereas the Inspector does not. Exhibit B does not adequately explain why the July 2008 portion of the roof should be torn off and replaced, and no witness from the contractor was present to offer further explanation. Therefore, Complainant has failed to show that the roof repair requires replacement of the entire roof. 6. With regard to the wood flooring, the evidence shows that the floor is damaged in certain areas and not in others. Complainant is seeking replacement of a little more than half of the floor rather than just the portions that are damaged. He contends that all wood should be replaced starting from a seam near the middle of the floor and then spreading out in a rectangle to the walls in a manner that would replace not only the damaged planks, which are located to one side of that seam, but also would replace undamaged planks. In support of his claim, Complainant submitted Exhibit A, a letter from the contractor who submitted a bid for the floor repair. Exhibit A states that undamaged planks will need to be replaced because trying to take out only certain planks will cause damage to the planks surrounding the plank being removed. Also, the contractor states that the existing planks, which have been in use and exposed to the interior environment, will not combine well with the new planks that have not been exposed and used. Thus, the contractor recommends replacement of a large portion of the floor rather than just the damaged planks. The bid is in the amount of $2,258.40. 7. The Fund objects to replacement of the entire floor. Inspector Sandoval testified that the entire floor does not need to be replaced, just the planks that are damaged. He testified based on his experience and knowledge of the industry that a contractor can replace only the damaged planks and need not replace a large portion as recommended by Exhibit A. He described in detail how the replacement of only the damaged boards could be done. He testified that replacing the damaged planks would cost about $200.00. 8. Once again, the Inspector’s testimony is given more weight than Exhibit A. The bidding contractor has a financial incentive that the Inspector does not. In addition, the contractor was not present to defend and explain its position that a large portion of the floor needed replacement even though only a few planks are damaged. 9. The Fund recommends payout in a total amount of $15,252.90. This includes $15,052.90 for the roof and $200.00 for the floor. The evidence supports that amount. 10. Complainant’s request for $21,511.37 is not supported by the evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] The Notice of Claim for Administrative Payout states that Complainant bears the burden of proof to show entitlement to the amount requested. Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that the amount he claims is reasonable and proper. Complainant has not met that burden. 2. Complainant is an injured person within the definition in A.R.S. § 32-1131(3) and is, therefore, entitled to recovery from the Fund. 3. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award, based on actual damages, an appropriate payment to Complainant from the Fund pursuant to A.R.S. §§ 32-1132 and 32-1154(F). 4. As found above, Complainant did not support his requested amount of $21,511.37 by a preponderance of evidence. 5. The greater weight of the evidence supports an award to Complainant in the amount of $15,252.90, all of which shall be chargeable against Respondent and persons on the license as set forth in A.R.S. § 32- 1139(B). RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors make payment from the Residential Contractors’ Recovery Fund to Complainant in the amount of $15,252.90.

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 Decision will be 40 days from the date of that certification.

Done this day, April 6, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This number is determined by taking the bid for complete roof replacement ($15,052.90) and taking out the portion that was already replaced in July 2008 ($4,200.07). [2] 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). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A).

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