ALJDEC decisions subject to certification as final

2010A-2250298-ROC · Registrar of Contractors · 2012-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2012 APPEARANCES: Complainant Peggy L. Theibert appeared on her own behalf. Respondent Southwest Design Flooring, L.L.C. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Complainant Peggy L. Theibert is entitled to an award and payment from the Residential Contractors’ Recovery Fund (“the Fund”) pursuant to A.R.S. § 32-1132(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Director of the Registrar of Contractors (“ROC”). Procedural Background On January 5, 2012, the ROC issued a Notice of Recovery Fund Eligibility/Payout Hearing advising the parties that the scheduled hearing in this matter would convene on March 6, 2012, at 8:00 a.m. On February 29, 2012, Respondent Southwest Design Flooring, L.L.C. (“Southwest”) filed with the Office of Administrative Hearings a request to continue the hearing. On February 29, 2012, Administrative Law Judge M. Douglas issued to the parties an Order Denying Continuance. On the date and at the time scheduled for the hearing, Complainant Peggy Theibert appeared on her own behalf. No one appeared on behalf of Southwest. The Administrative Law Judge delayed the commencement of the hearing for approximately thirty minutes to allow for the appearance of Southwest, or the receipt of any information that would constitute good cause for its absence or delay. After the expiration of the thirty minute grace period, the Administrative Law Judge convened the hearing and proceeded in Southwest’s absence. FINDINGS OF FACT 1. Ms. Theibert entered into a contract with Southwest for the cleaning, stripping, and sealing of the Saltillo tile in the kitchen, nook, living and dining rooms, hall, and hall bathroom of her home. Ms. Theibert paid Southwest the full contract price in the amount of $1,520.49. 2. On October 28, 2009, Ms. Theibert filed a complaint against Southwest with the ROC. Ms. Theibert’s complaint generally alleged poor workmanship and damage to the tile caused by Southwest. The ROC designated the complaint as Case No. T10-0225. 3. On February 2, 2010, the ROC issued a Citation and Complaint in Case No. T10-0225, charging Southwest with violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(23), and A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1124(B). 4. On September 10, 2010, a default Decision and Order was issued by the ROC concluding that Southwest violated the charged provisions of A.R.S. § 32-1154(A), and suspending Southwest’s license on the effective date of the Order until the ROC received proof that Southwest had appropriately performed the corrective work involved and detailed in the Complaint and the agency’s written directive. The ROC further ordered Southwest to pay a $250.00 civil penalty to the ROC. 5. The ROC’s Order indicated that the Order would become effective on October 20, 2010, and that any request for rehearing must be filed on or before October 15, 2010. The Order also set forth that any appeal to the Superior Court must be filed and a Stay Order secured on or before October 20, 2010. 6. On October 8, 2010, Southwest submitted a timely Request for Rehearing in this matter to the ROC. On or about November 15, 2010, Ms. Theibert submitted a Response objecting thereto. 7. On March 29, 2011, the ROC issued an Order Denying Request for Rehearing in which it advised the parties that the previously entered Decision and Order would become effective on May 8, 2011. 8. On July 29, 2011, the ROC suspended Southwest’s license until it complied with the Order entered in Case No. T10-0225. 9. On July 29, 2011, the ROC revoked Southwest’s license for failing to pay the civil penalty. 10. On November 16, 2011, Ms. Theibert filed a claim with the ROC seeking payment from the Fund for damages she alleged to have incurred as a consequence of Southwest’s statutory violations. The ROC re-designated Ms. Theibert’s claim as Case No. 2010-2250298. 11. The ROC investigated Ms. Theibert’s claim to the Fund and on December 5, 2011, issued a Notice of Claim for Administrative Payout in Case No. 2010-2250298, formerly Case No. T10-0225, recommending a payout in the amount of $4,400.00. 12. Southwest requested a hearing regarding Ms. Theibert’s claim to the Fund, and this matter was thereafter set for hearing before the Office of Administrative Hearings. 13. Ms. Theibert submitted three bids from licensed contractors to the ROC for the replacement of the damaged Saltillo tile throughout her home, due to the fact that tile matching the existing tile no longer exists. The bids were as follows: i. Tile Creations $24,900.00 ii. Southwest Tile Innovations $9,368.59 iii. Tile Pros $4,400.00

14. The ROC recommended a payout in the amount of the low bid. 15. Ms. Theibert testified that the damage to the tile is extensive and that it will cost more than $4,400.00 to have the corrective work completed. Ms. Theibert further testified that Tile Creations was the most professional, and although it submitted the most expensive bid, she would prefer to utilize Tile Creations for the corrective work. 16. Notwithstanding the fact that Southwest requested the hearing, Southwest did not appear for hearing, and did not present any controverting or mitigating evidence. 17. Based on the evidence presented, the Administrative Law Judge finds that Ms. Theibert is entitled to receive an award from the Fund in the amount of $4,400.00. CONCLUSIONS OF LAW Under A.R.S. § 32-1132, the ROC is empowered to determine and award payment to Ms. Theibert from the Fund. Ms. Theibert meets all of the requirements of a “person injured” as that term is defined in A.R.S. § 32-1131(3). Pursuant to A.R.S. § 32-1132(A), “the residential contractors’ recovery fund is established, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter may be awarded in . . . an amount of not more than thirty thousand dollars for damages sustained by the act, representation, transaction or conduct.” 4. The weight of the credible evidence presented at hearing demonstrated that Ms. Theibert was injured as a result of Southwest’s poor workmanship, and that in order to rectify such injury, Ms. Theibert is entitled to a payout from the Fund in the amount of $4,400.00. 5. Based on the foregoing, Ms. Theibert should be awarded a total payout from the Fund in the amount of $4,400.00, all of which should be charged against Southwest and/or persons named on Southwest’s Class K-8 license as set forth in A.R.S. § 32-1139(B). RECOMMENDED ORDER The Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, the ROC shall commence and finalize payment procedures from the Fund to Complainant Peggy L. Theibert in the amount of Four Thousand Four Hundred Dollars ($4,400.00), when such funds are available. 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, March 14, 2012.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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