ALJDEC decisions subject to certification as final

2014A-1279-ROC-rf · Registrar of Contractors · 2016-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 11, 2016 APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Complainant Roy Martinez Jr. was present on his own behalf. Edder Montes, Qualifying Party, appeared on behalf of Respondent C Landscaping and Irrigation Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (Registrar) issued License No. 213030 to Respondent. 2. On or about March 31, 2014, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent had not completed its contractually agreed-upon work, had demanded more money for unauthorized work, threatened to place a lien on his home if additional money was not provided, performed work in untimely matter, and that “some of the work was questionable” (the workmanship complaint). See Exhibit 1. 3. As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging possible violations of A.A.C. R4- 9-108, and thereby of A.R.S. § 32-1154(A)(3),[1] and a violation of A.R.S. § 32-1154(A)(22).[2] 4. Respondent filed a timely answer to the Citation. An administrative hearing was held. In her October 27, 2015 Decision, Administrative Law Judge Suzanne Marwil considered Respondent’s arguments and concluded that “Complainant established Respondent’s work regarding the chip on the house, block wall, corner wall and sprinklers was not done in a professional and workmanlike manner” in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3). 5. On November 18, 2015, the Registrar issued a Final Administrative Decision and Order. See Exhibit 3. 6. On or about February 25, 2016, Complainant filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of fixing the problems with the landscaping project. The claim included three bids of $16,041.16, $17,035.00, and $16,920.51 that Complainant had received to correct the project. 7. The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages, after deducting $4,000.00 still due on the parties’ actual contract, were $11,939.90. Respondent requested a hearing, believing the payout was too high. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing. 8. Hearing was held on May 11, 2016. Hearing Evidence 9. The Directive from the Registrar specified that: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes, and manufacturer’s installation instructions.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

10. James Barbour, claims adjuster for the Fund, testified that he reviewed the Directive from the Registrar that had been issued, Judge Marwil’s October 27, 2015 Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Barbour stated that he recognized that the three bids that were submitted were more than twice as much as the original contract, but noted that all three came from licensed contractors and were within a reasonable amount of each other. Mr. Barbour also indicated that all three bids referenced that Complainant’s materials on site were to be used. Mr. Barbour concluded that the lowest bid of $16,041.16 was appropriate and deducted from it $101.46 that was beyond the scope of the original contract and the $4,000.00 owing on the original contract. 11. Respondent questioned the use of the three bids because they came from Scottsdale-based contractors. Respondent asserted that local contractors should be required to give a more accurate bid for the neighborhood. Respondent also indicated that materials were left on site that should have reduced the amount of the bids substantially. 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. . . .” Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] 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 award appears to properly remedy the violations for which Respondent was responsible. Complainant is accordingly entitled to a payout from the Fund in the amount of $11,939.90. 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 $11,939.90. 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, May 31, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] A.R.S. § 32-1154(A)(22) 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] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary 1220 (8th ed. 1999).

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