ALJDEC decisions subject to certification as final

2015a-113-ROC-RF · Registrar of Contractors · 2016-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8 and 28, 2016 APPEARANCES: Douglas Schmeling, Complainant; Dennis DeCarmine, Respondent’s representative; Tom Raine, Attorney for Registrar of Contractors; Eric Ulinger, Registrar of Contractors witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

After Complainant filed a claim with the Registrar of Contractors Residential Contractor’s Recovery Fund, the greater weight of the evidence established that the payout should be modified to $3,720.00 based on a bid submitted by Respondent’s representative that was established to be closer to the current rates for the scope of work involved. FINDINGS OF FACT 1. Pursuant to the Registrar of Contractors’ final order issued on December 3, 2015, Respondent’s contractor’s license was suspended after a finding of a violation due to a complaint by Complainant.[1] 2. On January 19, 2016, Complainant filed a claim with the Residential Contractor’s Recovery Fund, which resulted in a proposed payout from the fund in the amount of $7,056.00 based on the lowest bid submitted by Complainant, which was in the amount of $10,056.00 and subtracting the $3,000.00 Complainant still owed to Respondent on their original contract.[2] 3. The matter was set for a further hearing because Respondent’s representative had not been able to see the evidence prior to the hearing, but when he saw the bids at the hearing, he noted that they were bid at a rate that is higher than the average rates that those contractors normally charge and he opined that the contractors would actually charge Complainant less when they did the work. He testified that Complainant told him that he would find a way to pay him the $3,000 he still owed on the contract somehow, and Respondent’s representative argued that Complainant was using the Recovery Fund to obtain that money, especially since the bids had increased from earlier bids from those contractors. 4. At the further hearing, Respondent’s representative disclosed his itemized costs for the same work and compared his rates to the bids, showing that if the costs were the same, the three bidding contractors had proposed $6,000 to $8,000 in profits for three days of work.[3] Respondent’s representative testified that he did not know what contractor makes even $1,000 profit per day. He also noted that the three bidders specialize in concrete work so their costs should actually have been lower than Respondent’s. 5. Respondent’s representative offered a bid by Patterson Remodeling, LLC, dated April 20, 2016, for $6,720.00.[4] He stated that Patterson had used aerial photos to determine the size of the job. 6. Mr. Ulinger testified that he called Patterson Remodeling, LLC, on a break and spoke to someone who said they had visited the property to make the bid. However, there was no way to determine whether the person he spoke to had an accurate recollection of the bid they were discussing. He said he also called the office of the contractor whose bid the Registrar of Contractors had used in the payout and asked if there was a possibility of padding, which the person on the telephone denied. However, because this was a self-serving statement by an unsworn person who could not be cross examined, it holds no weight. 7. Respondent’s representative also admitted that the date on Exhibit A was not accurate because he had used an old invoice to begin with and he forgot to change the date. He said he made the exhibit on or about April 23, 2016. CONCLUSIONS OF LAW 1. Arizona Revised Statute § 32-1132(A) provides for a residential contractor’s recovery fund “from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed . . .” may be awarded an amount of not more than $30,000. Arizona Revised Statute § 32-1154(G) provides that the Registrar of Contractors “may” order a payout from the recovery fund where a contractor’s license has been revoked or suspended as a result of a violation and the contractor is unwilling or unable to remedy the violation. 2. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, § 5 (1960). Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. In this case, the greater weight of the evidence has established that it is more likely that the bid by Patterson Remodeling, LLC, is the more accurate reflection of Complainant’s actual damages. Therefore, it must be recommended that the payout be modified to $3,720.00. It is closer to the standard charges for the scope of work involved. RECOMMENDED DECISION Based on the foregoing consideration, the undersigned Administrative Law Judge hereby recommends that the Registrar of Contractors modify the Residential Contractor’s Recovery Fund payout to $3,720.00. Done this day, May 16, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Exhibit 4. [2] Exhibits 5 through 10. [3] See Exhibits A, B, C, and D. [4] Exhibit B.

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