ALJDEC decisions subject to certification as final

2010A-4154727-ROC · Registrar of Contractors · 2011-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2011

APPEARANCES: Complainant appeared on her 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 Seth Hargraves.

WITNESSES: Anne Till Doug Ulmer, Recovery Fund Claims Reviewer Ted Gerold, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Anne Till seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by defective workmanship of Respondent Sonoran Custom Decks, LLC. As noted above, Respondent did not appear. This tribunal entered the claim file received from the Registrar of Contractors into the record. The claim file shows that Complainant requested the hearing for this matter in order to challenge the amount of the payout. Complainant is challenging the Fund’s recommendation for payout in the amount of $1,895.67. She claims that the payout should be $4,065.01. Complainant and the Fund addressed only that issue at hearing. Complainant presented Exhibits A through E, and the Fund presented Exhibits 1 through 14. Further, the parties submitted testimony from the witnesses listed above at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Decision for payout in the amount of $1,895.67. FINDINGS OF FACT 1. Respondent was the holder of license K-5.230423-D, a dual specialty restricted contracting license issued by the Registrar of Contractors (“ROC”). The license was revoked on August 30, 2010. 2. Respondent defectively installed new Kool Deck around Complainant’s pool. After Complainant filed a complaint with the ROC against Respondent, Respondent defaulted and the ROC issued an Order finding Respondent in violation of the licensing statutes and ordering Respondent to correct its mistakes in accordance with a Corrective Work Order (“CWO”) that had been issued. The Decision and Order became final. When Respondent did not make any corrections, the license was revoked. 3. Complainant then made a claim to the Fund in October 2010, based on four bids she obtained from licensed contractors. The Fund reviewed the claim and recommended a payout of $1,647.05, which corresponded with the lowest bid Complainant had obtained. Complainant requested a hearing. 4. At the hearing, the Fund agreed to accept an updated bid from the lowest bidder, changing its recommendation to $1,895.67. 5. Inspector Ted Gerold inspected the damage at Complainant’s pool deck on March 31, 2011, and reviewed the four bids that were provided by Respondent. He determined that the low bid, from Diamondback Decking, covered all the work needed to make corrections in accordance with Complainant’s complaint and the CWO. Therefore, he recommended that the low bid be accepted as the amount of Complainant’s damages. He testified at the hearing in support of his recommendation. 6. Complainant testified that the Diamondback Decking bid did not include all the work that is in the CWO. She asserts that the next highest bid, from V Stained Concrete for $4,065.01, is the bid that shows her actual damages. The difference in the bids is that V Stained Concrete is proposing to grind down the existing Kool Deck to form a smooth surface and then apply new overlay. Diamondback Decking is not proposing to grind down the surface but will apply a colored patch material and sealer. 7. Complainant asserts that the Diamondback Decking bid will not properly fix the damage. However, Inspector Gerold testified that the Diamondback Decking proposal was an adequate fix. Greater weight is given the Inspector’s testimony, based on his expertise. 8. The record supports the recommended payout of $1,895.67. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, the amount of her actual damages.[3] Complainant has not met that burden with any amount greater than $1,895.67. 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). There is a cap of $30,000 for recovery from the Fund.[4] 4. Respondent caused the injuries to Complainant by poor workmanship. 5. The evidence of record supports an award to Complainant in the amount of $1,895.67, all of which shall be chargeable against Complainant and any other 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 $1,895.67.

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 15, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [4] A.R.S. § 32-1132(A).

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