ALJDEC decisions subject to certification as final

2014A-3261-ROC-RF · Registrar of Contractors · 2016-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2016 APPEARANCES: Complainant Dawne Dolney appeared and represented herself. Soulliere Decorative Pavers LLC (“Respondent”) appeared through its authorized representative, member and qualifying party, Scott Soulliere. 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. 219199 to Respondent. 2. On August 14, 2014, the Registrar received a Complaint against Respondent from Complainant regarding Respondent’s installation of decorative pavers in her backyard (“the workmanship complaint”). See Exhibit 1. The Complaint also alleged problems with drainage in the backyard and issues with the stucco on the patio. 3. On January 2, 2015, after an inspection, Steve Klein, an investigator with the Registrar issued a Directive containing eight items of substantiated poor workmanship by Respondent. See Exhibit 2. On February 28, 2015, Klein issued an amended Directive to Respondent adding two more items of substantiated poor workmanship. See Exhibit 3. 4. On March 13, 2015, Klein conducted a compliance inspection and noted that none of the items in the Directive had been addressed. Klein’s notes from that inspection reflect that Respondent maintained it lacked access to Complainant’s home to make corrections. See Exhibit 4. 5. As a result of the Complaint, on April 17, 2015, the Registrar issued a Citation against Respondent charging a possible violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] See Exhibit 5. 6. Respondent failed to file a timely answer to the Citation. On June 15, 2015, the Registrar issued a Default Decision and Order finding that Respondent had violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4- 9-108. See Exhibit 4. Pursuant to the Order, the Registrar suspended Respondent’s license for fifteen days with a subsequent ninety day period of disciplinary probation. See Exhibit 6. 7. On July 20, 2015, Complainant filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of fixing the issues with her backyard and the installation of the pavers. The claim form indicated that the lowest bid that Complainant had received to correct these items was a $9,533.43 and that Complainant had already paid $300.00 for electrical work to address these issues. See Exhibit 8. 8. The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainants’ actual damages, were $6,538.18. Respondent requested a hearing, believing the payout was too high. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”) for an evidentiary hearing. 9. Hearing was held on January 14, 2016, at 10:00 am. Hearing Evidence 10. The Directive specified that: 1. Water shall flow away from the building: 2. Pipe and drain installed after pavers were laid to fix pooling issue, doesn’t appear to be functional on east side of back yard: 3. Numerous uneven pavers throughout back yard: 4. Joints between pavers not filled with polymeric sand - backyard: 5. Cracked paver: 6. Numerous loose I unsecured pavers throughout the back yard: 7. Stucco repairs to pre-existing back wall, east & west unfinished and different: 8. Westside walkway paver joints lacking sand and areas are cracking[.]

11. The Amended Directive listed the above issues and added the following: 9. Scott jackhammered the ground and pavers and removed the cabinet from the bbq. 10. Clean up/level out the mounds of earth and gravel they moved to one side of the house to install the new pavers[.]

12. James Barbour, claims adjuster for the Fund, testified that he reviewed the Directives that had been issued regarding the issues in Complainant’s matter, the Default Decision and Order, the parties’ original contract and payment history, and bids submitted by Complainant in calculating Complainant’s actual damages. Barbour determined that Complainant still owed Respondent $2,995.25 on the original contract, which amount should be deducted from any bid. He further declined to reimburse Complainant for materials costs because she had agreed to provide her own materials in the original contract. Barbour did not include the $300.00 Complainant spent on electrical work because that amount was paid to an unlicensed contractor and had also been completed before Klein’s jobsite inspection. 13. Of the four bids provided, Barbour indicated that he utilized the lowest bid of $9,533.43 from Backyard Landscaping Renovation after confirming with both Klein and investigator Randy Cason of the Registrar that the bid conformed to the Directives and was not excessive in amount or scope. He noted that he specifically queried Klein and Cason over whether the bid should include the demolition of concrete as that was not included in the original contractor and was told that the concrete demolition was reasonable under the circumstances. 14. Barbour said that the $6,553.18 administrative payout represented the difference between the bid amount of $9,533.43 and the $2,995.25 still owed on the parties’ original contract. 15. The Registrar took the position that because Respondent had failed to file a timely answer to the workmanship complaint, it conceded that the deficiencies found in the Directives existed and could not now challenge whether any of the items listed in the Directives were reimbursable as actual damages. 16. Scott Soulliere, the owner of and qualifying party of Respondent, testified that he did mail an answer to the workmanship complaint, but the Registrar did not receive it. He believed that the bid used as the basis for the administrative payout was excessive because it included concrete and stucco work not included in the parties’ ’contract. Soulliere also opined that the charges included in the bid were more than he would charge for the same work. He also speculated that Complainant had asked for concrete demolition to be included in the bid. 17. Complainant testified that she did not have input on any of the bids and that all of the companies that bid indicated that the concrete needed to be demoed in order to do the work needed. 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.[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 award appears to properly remedy the workmanship violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate. 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 $6,553.18. 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, February 2, 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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