ALJDEC decisions subject to certification as final

2013A-4258-ROC-rf-rem · Registrar of Contractors · 2015-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 3, 2015 APPEARANCES: Complainant appeared on his own behalf. Respondent did not appear. The Registrar of Contractors was represented by Assistant Attorney General John Tellier. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ Complainant challenges 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 for the amount of $1,775.19. Complainant requested a hearing, challenging the proposed payout amount as too low. Based upon the record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Respondent was the holder of License No. CR42.269776-D issued by the Registrar of Contractors (the Registrar). 2. On or about February 12, 2011, Complainant entered into a contract with Respondent to install a new roof at his residence. Respondent completed work on the project on or about May 18, 2011. 3. After the work was completed, Complainant’s roof developed leaks. Respondent returned to the property to attempt repairs throughout 2011 and 2012. On April 2, 2013, Respondent contracted with Arizona Valley Roofing to perform repairs at Complainant’s home. 4. On or about September 6, 2013, Complainant filed a complaint with the Registrar alleging poor work by Respondent in the performance of its February 12, 2011 contract. 5. On or about September 30, 2013, the Registrar conducted a jobsite inspection. On October 1, 2013, the Registrar issued a Corrective Work Order, in which Respondent was directed to correct the following by the appropriate means: Complaint 1) There is a leak behind the drywall in my kitchen that causes the paint to bubble and a puddle of water to form on my kitchen window sill and counter every time it rains: Repair efforts that were performed by the respondent on the rear S/W tarred valley as well as surrounding areas, were and, [sic] are not done in a professional and workmanlike manner. Respondent is to correct the valley and surrounding patched areas per all applicable standards, and in a professional and workmanlike manner, as well as having drywall and paint damage in the kitchen corrected by the appropriate means.

Exhibit 2.

6. On or about October 25, 2013, the Registrar issued an amended Corrective Work Order in which it was noted that Respondent’s license had been suspended for non-renewal on February 1, 2013, and Respondent could not do or subcontract the corrective work until the suspension had been lifted. 7. Respondent did not complete the work required in the Corrective Work Orders. 8. On or about March 17, 2014, Respondent’s license was revoked pursuant to a consent order including a finding of poor workmanship and failure to comply with a directive from the Registrar by Respondent in relation to Complainant’s complaint. 9. Complainant made a claim to the Fund on December 24, 2014. With the claim, Complainant submitted three bids from licensed contractors to repair the roof. Two of the bids called for redoing the rear slope of the roof while the third called for redoing the entire roof. The bid from Roofing Consultants of Arizona, Inc., License Nos. 075876 and 076579, totaled $5,825.00. The bid from Art King Roofing Company, Inc., License No. 103187 and 103195, totaled $6629.00 plus tax. The bid from Lyons Roofing, License No. 205554, totaled $13,448.65. 10. On or about May 14, 2015, James Barbour, Claims Reviewer for the Registrar, performed a Recovery Fund jobsite inspection. Mr. Barbour observed damage to the drywall in the kitchen measuring approximately 45” in length and 9” in width. Mr. Barbour concluded this represented a minor drywall repair with some painting. It was noted that the bids submitted by Complainant did not address the drywall repair, but that such repair was required by the Corrective Work Orders. On the roof, Mr. Barbour observed the valley area of the roof that had previously been repaired in a poor manner and shingles nearby that had silicone around them appearing to address issues with sealing. Mr. Barbour concluded that the valley was approximately 14’ by 7” in area. Based on his observation, Mr. Barbour determined that an area of 17’ by 12’ needed to be repaired. 11. Based on Mr. Barbour’s findings, the Fund estimated the cost to repair the items included in the Corrective Work Orders. The Fund determined that Complainant was eligible for payout from the Fund in the amount of $1,775.19. 12. Complainant objected to the proposed payout. Complainant testified at the hearing that none of the licensed contractors who had inspected his roof were willing to do a repair and provide a warranty. Complainant asserted that because his original roof came with a warranty, a payout from the Fund should return him to the position he would have been in had the work been done properly—with a new roof with a warranty. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action. Utah Construction Company v. Berg et al., 68 Ariz. 285, 205 P.2d 367 (1949); A.A.C. R2-19- 119(B). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2- 19-119(A). The Notice of Claim for Administrative Payout states that Complainant bears the burden of proof to show entitlement to any amount other than that in the Notice. Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that the proposed payout amount is not reasonable and proper. 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. According to A.R.S. § 32-1132(A), an award from the Fund is limited to “actual damages suffered by the complainant as a direct result of the contractor’s violation . . .,” not to exceed the cost of repair or replacement. “Actual damages” are those that will put the injured party in the position in which he was before he was injured. United States Fidelity & Guaranty Co. v. Davis, 3 Ariz. App. 259, 263, 413 P.2d 590, 594 (1966). 4. Under the facts and circumstances of this case, the Fund is empowered to determine and award, based on actual damages, an appropriate payment to Complainant pursuant to A.R.S. § 32-1132 and A.R.S. § 32-1154(F). 5. The weight of the evidence established that one area of the roof required repair to address the leak and that the drywall in the kitchen needed to be repaired. 6. The credible evidence of record supports an award to Complainant in the sum of $1,775.19, all of which shall be chargeable against Respondent and the persons listed on License No. 269776 of Respondent. RECOMMENDed order In view of the foregoing, it is recommended that the Registrar authorize a payment from the Residential Contractors’ Recovery Fund to Complainant in the amount of $1,775.19. In the event of certification of this 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 the certification. Done this day, November 23, 2015.

/s/ Tammy Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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