ALJDEC decisions subject to certification as final

2014A-2078-ROC · Registrar of Contractors · 2016-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2016 APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Complainant Kevin Dean Price was present on his own behalf. Brett Monroe, Owner and Qualifying Party, appeared on behalf of Respondent Monroe Concrete Coating & Remodeling LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (Registrar) issued License No. 280803 to Respondent. 2. On or about May 23, 2014, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent’s work was poor and Respondent refused to do any warranty work (the workmanship complaint). See Exhibit 7. 3. As a result of the workmanship complaint, 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; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B); A.R.S. § 32-1154(A)(16); and A.R.S. § 32- 1154(A)(22). 4. Respondent filed a timely answer to the Citation. An administrative hearing was held. In his January 4, 2016 Decision, Administrative Law Judge M. Douglas considered Respondent’s arguments and concluded, among other things, that “[t]he Registrar established by a preponderance of the evidence that Respondent’s workmanship at the construction project at [Complainant’s] residence failed to comply with applicable workmanship standards and that Respondent failed to comply with the terms of the written Directive.” 5. On January 27, 2016, the Registrar issued a Final Administrative Decision and Order. See Exhibit 9. 6. Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of fixing the problems with the concrete flooring. The claim included bids from four different contractors 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 $4,250.00 recovered from Respondent’s bond, were $3641.31. 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 July 21, 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:

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:

6. Complainant’s allegation: Workmanship was poor (Drywall).

a. The drywall in the office wall has ridge, has visible seam in ceiling and wall at end of hallway does not lay flat.

Workmanship was poor (Electrical)

d. GFI on west exterior wall of office loose.

Workmanship was poor (Cement overlay on Flooring)

e. Cement overlay of flooring has areas that are not uniform.

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

10. Doug Ulmer, claims adjuster for the Fund, testified that he reviewed the Directive from the Registrar that had been issued, Judge Douglas’s January 4, 2016 Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Ulmer stated that he recognized that the bids required the entire concrete floor to be redone, but that was consistent with his past experience. Patches to concrete flooring are often difficult due to matching issues and subsequent contractors are unwilling to take on a repair of an existing concrete floor. Mr. Ulmer concluded that the lowest bids of $6990.00 for the flooring and $901.31 for the drywall repair were appropriate and deducted from it $4250.00 that was recovered from the bond. 11. Respondent questioned that the bid for the concrete flooring indicated 1398 square feet to be completed while the original contract was for only 1381 square feet. At a rate of $5.00 per square foot, the bid was $85.00 than it should have been to have the same scope as the original contract. 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.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] After review of all the evidence, the Tribunal concludes that the award provided by the Fund did not accurately reflect Complainant’s actual damages. The award should be reduced by $85.00 to account for the difference in square footage between the original contract and the bid used for the calculation of the Fund payout. In all other respects, 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 $3556.31. 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 $3641.31. 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, August 10, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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). [2] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [3] Black’s Law Dictionary 1220 (8th ed. 1999).

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