ALJDEC decisions subject to certification as final

2014A-1112-ROC-RF · Registrar of Contractors · 2016-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2016 APPEARANCES: Doug Ulmer, ROC Recovery Fund, Tom Raine, Esq., Attorney for the ROC Recovery Fund; Annette Ramirez for the Respondent; Doug Tearney and Sharon Tearney, Complainants ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT 1. The Complainants filed a claim for payment with the Residential Contractors’ Recovery Fund [the “Fund] pursuant to A.R.S. § 32-1154(G) on June 8, 2016. 2. On July 18, 2016, the Registrar of Contractors (“Registrar”) issued a “Notice of Claim for Administrative payout wherein notice was provided that the Fund determined that the Complainants are entitled to an award of $1,752.79 in the form of payment issued by the Fund. 3. On July 26, 2016, the Respondent timely requested the matter be set for hearing. The Respondent’s request for hearing noted that it was disputing the claim of the Complainants. Notice of Hearing was properly issued to the parties. Hearing in the above-captioned matter was set September 13, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 4. The Notice shows that the hearing was set to determine whether an award and payment from the Contractors’ Recovery Fund pursuant to Ariz. Rev. Stat. section 32-1154(F) is justified by the evidence. 5. Respondent appeared by Annette Ramirez who testified at the hearing. Respondent offered no exhibits into evidence. 6. Complainants Sharon Tearney and Douglas Tearney appeared at the hearing, but were not called to testify. The Registrar presented the testimony of Doug Ulmer, a Recovery Fund claims reviewer. 7. Exhibits RF1 through and including RF9 were offered by the Registrar and were admitted without objection. 8. On April 28, 2012. Che Bella Italian Plasters, LLC [Respondent herein] contracted with the Complainants to apply an epoxy surface to their residence garage. Specifically, Respondents were to apply: Liquid Terazzo: Patch and Epoxy coat using a light broadcast of paint chips of owners’ choice – Base color – Buff, Chip color – coconut ¼ inch. [Exhibit RF6]. 9. Recovery Fund claims reviewer, Doug Ulmer, testified that he was able to confirm through a search and review of public records that the Complainants were, at the time of the contract for the Respondent’s services, the owners of record of the residence where the Respondent’s services were provided and were residing in the residence at the time of the subject contract for services. Mr. Ulmer testified that he was able to determine that the Complainants’ residence was a Class Three Residential property as defined by A.R.S. § 42-12003. 10. The Complainants filed a Complaint against the Respondent on March 14, 2014. On August 27, 2014, after inspection of the job site, the Registrar issued a Directive to the Respondent : “to remedy the following violations by the appropriate means: Tire mark stains appeared o epoxy coated garage floor shortly after the job was completed. Stains cannot be removed by any means. REPAIR BY APPROPRIATE MEANS. [Exhibit RF3].

11. Thereafter, on May 15, 2015, the Registrar issued a Citation for Alleged violation of Rule 4-9-108. In the Citation, the Respondent was notified it was charged with “A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3). The Respondent failed to file a written Answer to the Citation. 12. On October 7, 2015, the Respondent’s Arizona ROC license Number 273014- D was suspended by the Registrar’s Final Administrative Decision and Order [the “Order’] wherein, after the Respondent was served with a Citation issued based upon the Complaint duly filed with the Registrar, it was found that the Respondent had violated the provisions of A.R.S. §32-1154(A)(3) in connection with the contract and services the Respondent provided for the Complainants. 13. Recovery Fund claims reviewer, Doug Ulmer, testified that after receiving three bids from ROC licensed residential contractors to repair the work done by the Respondent [Exhibit RF7], the actual damages sustained by the Complainants resulting from the sub-standard workmanship of the Respondent is $1,752.79. Mr. Ulmer testified that the Fund contends the Complainants are a “Person injured” pursuant to A.R.S. §32-1131(2) and are entitled to recover $1,752.79 payout from Residential Contractors’ Recovery Fund. 14. Annette Ramirez testified for the Respondent in opposition to the payment amount determined by the Recovery Fund. She argues that the Complainants’ job required only the surfacing of their garage floor with an epoxy coating, whereas the bids reviewed and the bid relied upon by the Fund called for an epoxy chip seal. Ms. Ramirez contended that the Complainants should not be placed in a better position with a higher priced covering than that which was contracted for with the Respondent. 15. The Respondent’s testimony and argument is unpersuasive. The written contract of the parties [Exhibit RF6] expressly states that the Respondent will provide a “light broadcast of paint chips…” The bid upon which Mr. Ulmer has relied [Exhibit RF7] requires the same materials as was contracted for originally by the Respondent. 16. Ms. Ramirez testified that in order to “repair” the Respondent’s work, she agreed with the Fund that the entire surface would have to be redone. She agreed the amount the Recovery Fund claims reviewer, Doug Ulmer, determined to be $1,752.79 to repair the Respondent’s work was fair and reasonable.

CONCLUSIONS OF LAW 1. The Complainants bear the burden of proof. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.[1] 2. To be eligible for a payout from the Fund, the Complainants must show that they are a “person injured” within the meaning of Ariz. Rev. Stat. section 32-1131(3)[2] The Complainants are found by the evidence presented to be a “person injured.” 3. The Complainants are damaged by the failure of the Respondent to adequately build or improve their residential structure in the amount of $1,752.79. 4. The Complainants are entitled to recover a $1,752.79 payout from the Arizona Residential Contractors’ Recovery Fund.

RECOMMENDED ORDER IT IS ORDERED that the objection to a payout by Che Bella Italian Plasters LLC d/b/a Che Bella Coatings shall be and is hereby denied. FURTHER IT IS ORDERED IT IS ORDERED that the Registrar of Contractors make to payment in the amount of $1,752.79 from the Residential Contractors’ Recovery Fund to the Complainants, Sharon Kaye Tearney and Douglas William Tearney.

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 is forty days after the date of that certification.

Done this day, September 14, 2016.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

Done this day, September 14, 2016.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

[2] "Person injured" means any owner of residential real property which is classified as class three property under section 42-12003 and which is actually occupied or intended to be occupied by the owner as a residence including community property, tenants in common or joint tenants who are damaged by the failure of a residential contractor or a dual licensed contractor to adequately build or improve a residential structure or appurtenance on that real property.

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