ALJDEC decisions subject to certification as final

2014A-1976-ROC-RF · Registrar of Contractors · 2016-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 29, 2016 APPEARANCES: John Nelson appeared on his own behalf. No one appeared on behalf of Grace Contracting Services, Inc. The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. 208634 to Grace Contracting Services, Inc. (“Respondent”). 2. The Registrar received a Complaint against Respondent from John Nelson (“Complainant”) regarding the work it had done to repair a leaky shower valve at his home located at 3910 West Cholla, Phoenix, AZ 85029 (“the workmanship complaint”). In particular, the workmanship complaint noted that Respondent came to the home in response to a home warranty claim and attempted to replace the shower valve on numerous occasions, but that Respondent kept making plumbing errors, which necessitated replacing the valve and tile multiple times. 3. The Registrar issued a Citation against Respondent charging a possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] Respondent failed to file a timely answer to the Citation. 4. On July 16, 2014, the Registrar issued a Default Decision and Order, which revoked Respondent’s license. 5. On July 31, 2014, Complainant filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of repairing the shower valve, tile and chipped bathtub. The claim form indicated that Complainant had already spent $1,175.00 to repair the project. A November 30, 2014 email from Complainant to the Registrar’s investigator of the underlying workmanship complaint, Steve Klein, provided a breakdown of the requested amount as follows: I am submitting this letter to you along with a copy of the invoice for the repair work we paid to have the tub and tile repaired and fixed. I am also including along with the invoice from the home warranty company that Grace Plumbing was contracted to the job.

We have decided to add $350.00 to the total for the parts I had to pick up at [H]ome depot, [L]owes, tile companies, gas, plus the sheer aggravation of the time [Respondent] put us through. 1. Invoice for the tub & shower repair ... $ 725.00 2. Copy of invoice from home warranty company ..... $100.00 3. [P]arts, tile, caulk, grout, adhesive from [L]owes, [H]ome [D}epot $350.00 4. TOTAL DUE FROM GRACE PLUMBING ..... $1175.00

See Exhibit 7.

6. On or about November 23, 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 $295.70 in the form of a payout issued by the Fund.” (Emphasis in original). 7. Complainant requested a hearing on the amount awarded by the Fund, asserting it was too low. The Registrar referred the matter to the OAH for an evidentiary hearing. 8. Hearing was held on February 29, 2016 at 8:00 am. Hearing Evidence 9. The August 19, 2014 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- l 08). You are hereby directed to remedy the following violations by the appropriate means:

Complaint #1 Shower valve leaks

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

Exhibit 3.

10. James Barbour testified that he is a claims adjuster for the Fund. He indicated that he reviewed the Directive that had been issued regarding Complainant’s shower valve and the receipts, invoices, and other documentation submitted by Complainant in calculating Complainant’s actual damages. He indicated that he only allowed $200.00 of the invoice submitted by Gilbert Elliott, R.G.V. Renovators LLC, totaling $725.00 because that was the amount that related to repair of the shower valve and the tile surrounding that valve. He found that the remainder of the invoice was beyond the scope of the Directive because it covered damage to the edge of the tub, grout staining the entire shower and removing and resetting the shower doors to allow for the recoat. Barbour applied the same analysis to disallow Complainant’s claim for Todd Porcelain & Fiberglass’ invoice for $125.00 because it covered repair of the tub. He added that this invoice was dated April 24, 2014, before Complainant filed his Complaint with the Registrar and four months before the Directive issued. Barbour allowed for payment of Lowes’ receipts, totaling $95.70. He did not consider Complainant’s request for emotional aggravation damages because he noted that the statute does not allow for payment of monies other than for actual damages to repair or replace damage to a residential structure. 11. Complainant testified that he thought it unfair that he bears the burden to prove his damages. He indicated that he sent Klein an email about the damage to the edge of his tub in September 2014, and was never told he had to file an amended Complaint in order to pursue that issue. He maintained that he was unaware of the law governing matters involving the Registrar and felt he was at a disadvantage pursuing his claim. Complainant emphasized that he had his wife had gone through months of trouble with Respondent and had incurred considerable expense and frustration that was not reflected in the proposed administrative payout. He agreed that he told Klein that he had been in and out of the tub area multiple times before noticing the chip on the edge of the tub and could not say with certainty when the tub became chipped. 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 he is entitled to recover from the Fund under A.R.S. § 32-1132(A) by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] 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.”[4] 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 Fund’s award takes into account the amounts that Complainant spent to fix the shower valve and replace the surrounding tile around the valve. The award thus appears to properly remedy the sole workmanship violation for which the Registrar cited Respondent. Complainant’s cost to repair issues not determined by the Registrar to be workmanship issues caused by Respondent are beyond the scope of this proceeding and not compensable. While the Tribunal is sympathetic to the frustration Complainant endured, the controlling statute does not permit recovery of damages stemming from emotional distress. 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 $295.70. 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, March 7, 2016.

/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] 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). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary 1220 (8th ed. 1999).

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