ALJDEC decisions subject to certification as final

2013A-315-ROC-rf · Registrar of Contractors · 2015-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 30, 2015 APPEARANCES: Patricia Kallof appeared on her own behalf. Az Pavescapes, LLC (“Respondent”) appeared through its authorized representative, member and qualifying party, Eladio Pena. The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.225867-D to Az Pavescapes, LLC (“Respondent”). 2. The Registrar received a Complaint against Respondent from Patricia Kallof (“Complainant”) regarding the installation of a flagstone patio at her home located at 6225 North 29th Place, Phoenix, AZ 85016 (“the workmanship complaint”). In particular, the workmanship complaint cited the shape and size of the flagstone, the texture and appearance of the grout, and difficulties with drainage. 3. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[1] and A.R.S. § 32-1154(A)(23).[2] 4. Respondent filed a timely answer to the Citation and a hearing was held at the Office of Administrative Hearings (“OAH”). Following a hearing on November 12, 2013, Administrative Law Judge Eigenheer issued a recommended Decision finding that “[u]ndisputed credible evidence established that when Respondent installed the flagstone patio in Complainant’s backyard, the grout that was used did not match the existing grout, there was cement staining on some of the flagstone and walls, a flagstone was loose and there was lippage around the French drain”, all of which constituted a workmanship violation. Judge Eigenheer found that Respondent did not fail to perform corrective work because Complainant did not afford Respondent access to her home to do the work. 5. On December 16, 2013, the Registrar adopted the recommended Decision’s Findings of Fact with minor clerical corrections. The Registrar suspended Respondent’s license for thirty days and placed Respondent on disciplinary probation for 180 days following the suspension. 6. On or about August 19, 2014, Complainant filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of repairing and/or completing the flagstone patio. The claim form indicated that Complainant had already spent $1,837.25 to repair the project.[3] 7. On or about August 3, 2015, the Registrar issued a Notice of Claim for Administrative Payout, stating in pertinent part: “After a review of the claim and all supporting documentation, the Fund has determined that Complainant is to be awarded $2,041.46 in the form of a payout issued by the Fund.” (Emphasis in original). 8. Complainant requested a hearing on the amount awarded by the Fund, asserting it was too low. Respondent likewise requested hearing, believing the payout was too high. The Registrar referred the matter to the OAH for an evidentiary hearing. 9. Hearing was held on October 30, 2015, at 8:00 am. Hearing Evidence 10. The Corrective Work Order specified that: Contractor to correct by appropriate means the following. 1. The grout mixture that the contractor installed does not match the existing grout, the contractor used mortar sand, the existing grout was mixed with silica sand. 2. There are cement stains next to the grout lines on the new flagstone that the contractor installed. 3. At the southwest and southeast of the French drain, there is lippage at the new flagstone that the contractor installed, the flagstone is not flush. 4. One piece of flag stone, west of the south table, the grout is cracked all the way around it. 5. The French drain is clogged up and needs to be cleaned out. 6. There is cement on the back yard planter walls. 7. There is loose flagstone around the patio column.

No action required of the contractor for the following. 1. I’m ok with the cuts that the contractor did to the new flagstone that he installed. 2. I could not find any hollow sounding flagstone at the inspection. 3. The complainant patio backs up to another patio, so the water that collects has no way to exit the area. The French drain is the only exit.

11. James Barbour testified that he is a claims adjuster for the Fund. He indicated that he reviewed the Corrective Work Order that had been issued regarding Complainant’s flagstone patio, Judge Eigenheer’s recommended Decision, and four bids submitted by Complainant in calculating Complainant’s actual damages. Only one of the bids submitted dealt with repairing the existing patio. All the other bids involved demolition of the patio and replacing the flagstone with a new material, which Barbour deemed beyond the scope of the corrective work order. Barbour utilized the single repair bid for $3,210.33 in determining actual damages, but discounted it because Respondent had only contracted to install a 580 square foot patio while the bid referenced 682 square feet. Specifically, he noted that the bid came out to $2.00 per square foot and therefore he awarded Complainant $1,160.00. Barbour also subtracted out the repair of the drainage issue contained in the bid ($650.00) because Complainant had already paid another company $450.00 to replace the drain, and he awarded Complainant the $450.00 she had already expended for that repair. He eliminated the $682.00 for flagstone repair by the planters’ round edges and Mortero porch as not called for by the corrective work order, but awarded the $350.00 to repair 10 pieces of flagstone as specified in the corrective work order. He then applied the applicable tax rate to yield a total of $2,041.46. He did not allow any other items Complainant claimed because they were for the cost of materials that Complainant had originally agreed to provide under her contract with Respondent. Barbour conceded that he had not been to Complainant’s home or seen pictures of her patio before hearing. He testified, however, that he had sufficient information to calculate Complainant’s actual damages based on his experience as a claims adjuster. 12. Complainant testified as to the substantial heartache she has experienced regarding the improper installation of her patio. She explained in some detail her efforts to have the patio repaired. She noted that despite the repair bid relied on by the Fund, no company wanted to repair the patio. In particular, she said that the contractor who submitted the repair bid Barbour relied on told her that the patio could not be repaired. Complainant indicated that all the companies she had dealt with stated that they would only touch the patio if it was demolished and redone in a different material. She also said that she hired another company to replace the drain. She said that her yard looked horrible and, at this point, she simply wanted to move. She noted that she had been told by realtors that she needed to fix her patio before moving. She adamantly believed that the amount suggested by the Fund would not cover her costs of redoing the patio. 13. Respondent testified that he believed the amount awarded by the Fund was excessive because Complainant did not have to replace the drain and he did not install the drain in the first place. Respondent did acknowledge that a clogged drain was part of the corrective work order and that he had no documentary evidence to suggest that the $450.00 expended by Complainant was not related to the issue identified in the corrective work order. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. A.R.S. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .” Complainant bears the burden of proof to establish the amount, if any, that she is entitled to recover from the Fund under A.R.S. § 32-1132(A) 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] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainant’s actual damages. The original contract was for only 580 square feet of patio and that is the total square feet for which Complainant should be compensated. The Fund’s award takes into account the amount that Complainant spent to fix the drain and permits her to replace the 10 pieces of existing flagstone that it was not possible to clean. The award appears to properly remedy the workmanship violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that a repair of the issues listed in the corrective work order is not possible, it would be excessive for the Fund to pay for the Complainant’s patio to be completely redone with different material. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $2,041.46. 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, November 13, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A) (3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [3] In the workmanship complainant, Complainant listed the amount she was owed as $1,220.19. [4] See A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B) (1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary 1220 (8th ed. 1999).

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