ALJDEC decisions subject to certification as final

2015A-5195-ROC-RES · Registrar of Contractors · 2017-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bonnie Lillian Glasgow,

PLAINTIFF,

v.

Bill's Awnings and Construction Co dba,

Bill's Awning and Construction Co ,

License No: 266610

DEFENDANT.

No. 2015A-5195-ROC-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 18, 2017

APPEARANCES: Bonnie Lillian Glasgow appeared on behalf of herself. Dan Tharp appeared on behalf of Bill's Awnings and Construction Co dba Bill's Awning and Construction Co. The Registrar of Contractors appeared through Assistant Attorney General Thomas Raine.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On February 17, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Recovery Fund Eligibility/Payout Hearing setting the above-captioned matter for hearing on April 5, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice shows that the hearing was set to determine whether an award and payment from the Contractors’ Recovery Fund pursuant to A.R.S. § section 32-1154(F) is justified by the evidence.

Complainant Bonnie Lillian Glasgow appeared and testified. The Registrar of Contractors, (hereinafter “Registrar”), presented the testimony of Doug Ulmer, (hereinafter “Mr. Ulmer”), a Recovery Fund claims reviewer.

On or about October 13, 2015, Complainant and Respondent entered into a roof remodeling contract for Complainant’s home located at 20840 E. Concho Lane, Mayer, AZ 86333.

On or about December 21, 2015, the Registrar received a complaint from Complainant alleging poor workmanship and a money dispute.

The contract amount listed on the complaint was $10,789.86.

The Registrar investigated the complaint.

On June 16, 2016, the Registrar issued a Citation against Respondent.

Respondent filed an appeal to the Citation and an administrative hearing was held on August 24, 2016.

On August 26, 2016, Administrative Law Judge Suzanne Marwil found that Respondent violated A.A.C. R4-9-108, A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154 (A)(12), A.R.S. § 32-1158 (B)(9) and A.R.S. § 32-1154 (A)(22).

On September 7, 2016, the Registrar issued a Final Administrative Order and suspended Respondent’s license for five days effective October 17, 2016, based upon the complaint.

On or about January 10, 2017, Complainant filed a claim with the Registrar’s Residential Recovery Fund, (hereinafter “Recovery Fund”).

The contract amount listed on the Recovery Fund claim was $7,697.27. The change order amount listed on the recovery fund claim was $3,092.59. The claim was reviewed by Doug Ulmer, a Recovery Fund Claims Reviewer.

On January 30, 2017, the Registrar issued a Notice and Order of Denial of Recovery Fund Claim that informed Complainant that her request for payment from the Fund had been denied.

The Registrar denied the claim because it found that Complainant did not provide sufficient evidence to establish that she suffered any “actual damages” in a manner that was compensable from the fund.

The January 30, 2017 Notice and Order of Denial of Recovery Fund Claim included a calculation of Complainant’s actual damages. The notice provides, in relevant part, as follows:

“Actual Damages” Calculation Summary:

Original contract price: $10,789.86

Less payment on contract: $3,500.00____

Unpaid balance due on contract: $7,289.86

Valid expenditures to complete/repair project: $6,950.00

Less the unpaid balance on contract: $7,289.86_____

Compensable “Actual Damages”: $0.00

During the time period that Mr. Ulmer reviewed Complainant’s

claim, she requested reimbursement for the handyman work and additional wood in an amount totaling $850.00. Mr. Ulmer did not include the amount in his calculation because Complainant did not provide receipts for the alleged payments.

Complainant field an appeal to the January 30, 2017 Notice and Order of

Denial of Recovery Fund Claim.

19. In Complainant’s appeal to the denial of her claim, she writes, “On page 4

of the Notice and Denial Letter, Item#1 – it is stated an amount of the “Original Contract Price: $10,789.86, this is not a true statement, the amount beyond what the insurance was paying I was told would be around $1500.”

20. At hearing, the Registrar presented the testimony of Mr. Ulmer.

Mr. Ulmer testified that Complainant did not suffer any actual damages.

21. In support of its case, the Registrar offered into evidence the October 13,

2015 contract between Complainant and Respondent. The contract shows a grand total of $7,697.27 and extra work in the amount of $3,092.59. The contract is signed by Complainant and Respondent’s qualifying party, Dan Tharp. The date of October 29, 2015 is written next to Dan Tharp’s signature.

22. The Registrar also offered into evident a statement of account activity prepared by Respondent. According to the statement, the contract date was October 13, 2015 and the extra work order date was November 14, 2015. The amount of the contract was $7,697.27 and the extra work order was $3,092.59.

23. The Registrar’s position is that the unpaid balance on the contract exceeds the cost Complaint paid to complete the project. The Registrar contended that the unpaid balance on the contract was $7,289.86 and the Complainant paid $6,950 to complete the project.

24. Complainant testified that she never agreed to the extra work order

in the amount of $3,092.59. Complainant testified that she discussed the additional work with Respondent and she agreed to pay Respondent an additional $1,500 for the change order. Complainant testified that at the time that she signed the contract, the total amount listed was $7,697.27. Complainant testified that she did not learn that Respondent wanted an additional $3,092.57 until he came to her house with an invoice for $3,092.57. Complainant refused to sign the invoice. Complainant testified that Mr. Tharp added the extra work amount of $3,092.59 on the original contract after she signed it.

25. When Complainant was asked by the Administrative Law Judge why she entered the amount of $10,789.86 as the contract amount on her complaint, Complainant stated that she entered the $10,789.86 because it was the amount that Respondent requested. Complainant testified that did not know that was not supposed to list the figure requested by Respondent. During cross examination, Complainant testified that she informed Investigator Jim Dimond that she did not agree to the change order amount of $3,092.59.

26. I find Complainant’s testimony to be credible.

27. During closing argument, the Registrar’s counsel contended the Notice of Denial was based upon the information the Registrar had at the time the claim was filed. The Registrar’s counsel stated that if the contract amount was the total of $7,697.27 and $1,500.00, Complainant would be eligible to a payout of approximately $1,200.00

CONCLUSIONS OF LAW

Complainant bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is “[e]vidence 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 (6th ed. 1990).

To be eligible for a payout from the Fund, Complainant must show that he contracted with a residential contractor whose license was in good standing at the time of contract execution under Ariz. Rev. Stat. section 32-1132(A).

Complainant provided credible testimony she did not agree to pay Respondent a change order amount of $3,092.59. Complainant testified that when she signed the contract, the total amount was $7,697.27. Complainant testified that she verbally agreed to pay Respondent $1,500 for the change order. Complainant testified that she only listed the total amount of $10,789.86 on complaint and claim form because it was the amount that Respondent requested. The account statement offered into evidence by the Registrar shows that the date of the change order was November 15, 2015, approximately a month and a half after the date of the original contract. Complainant testified that she verbally agreed to pay an additional $1,500. However, Complainant testified that she refused to sign the $3,092.59 invoice.

The preponderance of the evidence shows that the amount of the contract in this case is the total of $7,697.27 and $1,500.00. The sum of $7,697.27 and $1,500, is $9,197.27. The amount of $9,197.27 less Complainant’s deposit in the amount of $3,500, is $5,697.27. Complainant’s actual damages are the amount that she paid to repair the work less any amount owing on the contract. The amount of $6,950 less $5,697.27, is $1,252.73. Complainant’s actual damages are $1,252.73.

The preponderance of the evidence shows that Complainant suffered damages in the amount $1,252.73.

ORDER

Based on the foregoing, the January 30, 2017 Notice and Order of Denial of Recovery Fund Claim is not upheld.

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 $1,252.73.

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, April 18, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors