ALJDEC decisions subject to certification as final

2014A-3915-RFA-ROC-RHG · Registrar of Contractors · 2017-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elisa Garrett,

COMPLAINANT,

v.

Prielipp Construction Inc,

License No: 138937

RESPONDENT.

No. 2014A-3915-RFA-ROC-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 12, 2017

APPEARANCES: Elisa Garrett, Complainant; Larry Prielipp, Respondent’s representative; Thomas Raine, Attorney for the Registrar of Contractors; Doug Ulmer, Registrar of Contractors witness; Susan and Jessica Ortiz, observers

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT

After Respondent’s contractor’s license was suspended for one day due to the finding of a violation concerning work performed by Respondent on Complainant’s home, Complainant filed a claim with the Registrar of Contractors requesting payment from the Registrar of Contractors Recovery Fund. The Final Administrative Decision and Order that imposed the suspension stated that it was modifying the Administrative Law Judge’s recommendation insofar as the recommendation recommended allowing Respondent to “clean the roof staining, repair all cracks and correct the patches (in Complainant’s stucco).” Therefore, the scope of work found to be the subject of the violation included only cleaning the roof staining, repairing all stucco cracks, and correcting previously repaired patches.

Complainant provided 3 bids with her Recovery Fund claim; one for $4200.00, one for $4,328.00, and one for $5,500 plus tax. Upon reviewing the bids, the Registrar issues a Notice of Claim for Administrative Payout, dated August 15, 2016, in which it was proposed that Complainant be awarded $4,200.00 from the Recovery Fund because that was the amount of the lowest bid.

Respondent filed a request for hearing regarding the proposed payout.

The matter was set for hearing at the Arizona Office of Administrative Hearings, an independent State hearings agency.

At the hearing, Respondent offered into evidence a notarized statement from Louie Venditto, who had purportedly provided the $5,500.00 plus tax bid. It that statement, Mr. Venditto revealed that he actually did not provide Complainant with that bid. Instead, he stated, he offered a bid for $1,500.00 plus tax and the bid submitted by Complainant was fraudulent and that his signature on it was a forgery.

Respondent also offered into evidence an unsworn statement by Ken Bourlier, Jr., who had provided the $4328.00 bid. In that statement, Mr. Bourlier said that he met with Complainant on May 30, 2016 to give her an estimate for miscellaneous repairs to the stucco, but she stated that she wanted to recolor the stucco on the front and two sides of the home, implying that her request was the basis for his bid. He stated that the repairing and fog coating the stucco would have been sufficient and this would have cost about $800.00.

Respondent also offered evidence that Complainant has sold the home, and Complainant acknowledged this. No evidence was offered to show that Complainant realized a lower price in the sale of the home due Respondent’s uncorrected work.

Registrar of Contractors Recovery Fund evaluator, Doug Ulmer, testified that he based his findings on the bids that were provided to him without being aware that they exceeded the scope of appropriate repairs.

Complainant testified that she trusted a friend to handle a lot of the work that Respondent did. She stated that she did not know that the friend had falsified a bid. She did stated that she had asked Mr. Bourlier if changing the color would hide the staining on the home and he had said it would. She said he never told her the job could be done for $800.00. She also stated that her friend touched up the stucco in some areas before she sold the home and that she told this to her realtor.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119.

A.R.S. § 32-1132(A) provides as follows:

A. The residential contractors' recovery fund is established, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter may be awarded in the county where the violation occurred an amount of not more than thirty thousand dollars for damages sustained by the act, representation, transaction or conduct. An 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. Actual damages shall not be established by bids supplied by or the value of work performed by a person or entity that is not licensed pursuant to this chapter and that is required to be licensed pursuant to this chapter. If the claimant has paid a deposit or down payment and no actual work is performed or materials are delivered, the award of actual damages shall not exceed the exact dollar amount of the deposit or down payment plus interest at the rate of ten per cent a year from the date the deposit or down payment is made or not more than thirty thousand dollars, whichever is less. Interest shall not be paid from the fund on any other awards under this chapter unless ordered by a court of competent jurisdiction. An award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of a residential contractor who was not licensed pursuant to this chapter or whose license was in an inactive status, expired, cancelled, revoked, suspended or not issued at the time of the contract. No more than the maximum individual award from the fund shall be made on any individual residence or to any injured person. Notwithstanding any other provision of law, monies in the residential contractors' recovery fund shall not be directly awarded for attorney fees or costs except in contested cases appealed to the superior court.

[Emphasis added.]

In this case, the greater weight of the evidence established that Complainant submitted false claims to the Recovery Fund. Coupled with the fact that the home has been sold with no evidence to indicate that Complainant lost any money due to Respondent’s work, the amount necessary to repair the work included in the scope of the Registrar’s final order could not be established with any reliability and it could not be established that Complainant suffered any actual damage in this matter. Therefore, it is recommended that the Recovery Fund decline to offer any pay-out to Complainant.

In addition to the failure of reliable evidence in this matter, the common law recognizes the inappropriateness of rewarding those who come to the courts for redress of their grievances with unclean hands. Although this tribunal is not a court, the doctrine is properly applied to administrative law hearings as well. It was Complainant’s duty to ensure that the Recovery Fund claim that she submitted was free of fraudulent claims, and the evidence established very clearly that the Recovery Fund claim had at least two fraudulent bids in it. For this reason as well, the claim should be denied.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Complainant’s Registrar of Contractors Recovery Fund claim be denied in its entirety.

In the event that the Administrative Law Judge Decision is certified by the Director of the Office of Administrative Hearings, the effective date of the Order is the date of certification.

Done this day, May 16, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors