ALJDEC decisions subject to certification as final

2014A-3915-ROC-RF · Registrar of Contractors · 2016-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elisa Garrett

COMPLAINANT

-v-

Prielipp Construction Inc.

License No. 138937

RESPONDENT

No. 2014A-3915-ROC-RF

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 19, 2016

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Larry Prielipp, Owner and Qualifying Party, appeared on behalf of Respondent Prielipp Construction Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 138937 to Respondent.

On or about September 29, 2014, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, that Respondent’s stucco work was poor (the workmanship complaint). See Exhibit 1.

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) and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her December 18, 2015 Decision, Administrative Law Dorinda M. Lang considered Respondent’s arguments and concluded, among other things, that “the Complainant[ ] established that Respondent violated A.R.S. § 32-1154(A)(3) and (22) because the stucco needed correction and the patches did not meet workmanship standards.” See Exhibit 5.

On January 25, 2016, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a one day suspension. See Exhibit 6.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of fixing the stucco. As part of the claim process, Complainant submitted bids from three different contractors that Complainant had received to correct the project.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $4200.00. 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.

Hearing was held on October 19, 2016.

Hearing Evidence

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:

Investigator’s Observation: As it was explained at the onsite inspection the house was previously painted and the stucco contractor "treated" the painted surfaces and applied a new conventional stucco color coat to the house. Several patches/areas around the house are failing.

RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.

Governing Rule: WSLC \: Stucco # 2

Complaint Item 5: New A/C does not cool house unless vents are closed off.

Investigator’s Observation: Inspection date was 12/08/14 and air conditioning was not in great demand. No temperature tests were conducted. The parties stated that the HVAC contrator has made attempts to properly balance the system, however these adjustments could not be verified at the time of this onsite inspection. Complainant should contact the Respondent and or HVAC contractor when the next heating season begins.

Governing Rule: WSLC # 1 & 3.

Complaint Item 6: There is no bottom board in screen room. We were told it was code and it lets in bugs and animals.

Investigator’s Observation: Arizona room plans were drawn by the first contractor Seven Star and are not completely detailed as to the method of construction of the sun room. The Respondent agreed to complete some type of enclosure modification, however the parties must agree to the design method and the complainant's will be required to supply the materials.

Governing Rule: NO VIOLATIONS

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

Doug Ulmer, Claims Reviewer for the Fund, testified that he reviewed the Directive from the Registrar that had been issued, Judge Lang’s December 18, 2015 Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Ulmer concluded that the lowest bids of $4200.00 for the stucco repair was appropriate.

Respondent questioned that the stucco had to be completely recolored as opposed to patched and repaired.

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.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Respondent had an opportunity to correct the stucco following the written directive from the Registrar and failed to do so.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is accordingly entitled to a payout from the Fund in the amount of $4200.00.

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 $4200.00.

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, November 14, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors