ALJDEC decisions subject to certification as final

2016A-1697-RFA-ROC · Registrar of Contractors · 2017-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Janet JoAnne Creech ,

COMPLAINANT,

-v-

Scott Clarence Gail DBA: S C G Painting

License No. 185748,

RESPONDENT.

No. 2016A-1697-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 13, 2017

APPEARANCES: Janet Joann Creech (“Complainant”) appeared and represented herself. Scott Clarence Gail DBA: S C G Painting (“Respondent”) appeared and represented himself. The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (“the Registrar”) issued License No. 185748 to Respondent.

On May 19, 2016, the Registrar received a Complaint against Respondent from Complainant regarding Respondent’s painting, caulking and staining of the interior of her home along with two exterior doors (“the workmanship complaint”). See Exhibit 1.

On July 26, 2016, after an inspection, Jim Dimond, an investigator with the Registrar, issued a Directive containing five items of substantiated poor workmanship by Respondent. See Exhibit 2.

As a result of the Complaint, on August 10, 2016, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3) namely A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(22). See Exhibit 3.

Respondent filed a timely answer to the Citation. On October 21, 2016, a hearing was held before Administrative Law Judge Dorinda Lang. Judge Lang made findings in relevant part as follows:

the remaining work involves touching up the paint, touching up the caulk in some, but not all, of the gaps by the jambs, replacing 2 warped doors, refinishing or replacing the front entry door so that its surface is smooth, and correct the front entry door dent that is in the area of the lock set.

See Exhibit 4 Judge Lang also found that Respondent violated A.R.S. § 32-1154(A)(3) namely A.A.C. R4-9-108, and recommended that a one day suspension of his license be imposed.

On December 6, 2016, the Registrar issued a Final Decision and Order accepting Judge Lang’s Decision. See Exhibit 4. Pursuant to the Order, the Registrar suspended Respondent’s license for one day. See id.

On September 7, 2017, Complainant filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of work done by Robert’s Painting to fix the painting and caulking issues as well as the cost of replacement doors and their installation. The claim form indicated that the lowest bid that Complainant had received to replace the doors was a $5,192.00 and that Complainant had already paid Robert’s Painting $5,286.00. See Exhibit 5.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages, were $12,683.43. 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.

Hearing was held on December 13, 2017, at 10:00 am.

Jessica Ortiz, claims adjuster for the Fund, testified that she reviewed the Directive that had been issued regarding the issues in Complainant’s matter, the Administrative Law Judge Decision, the Final Decision and Order, the parties’ original contract and payment history, the invoice from Robert’s painting and the two bids for replacement doors bids submitted by Complainant in calculating Complainant’s actual damages.

Of the two bids provided, Ortiz indicated that she utilized the bid from the Door and Window Store even though it was not the lowest bid because its work included the staining work provided for in the Directive while the lowest bid did not include staining. Ortiz noted she only included the two stained doors and disallowed the amount for an unstained door. She awarded Complainant $7,756.00 for the replacement doors.

Ortiz also awarded Complainant the full amount of Robert’s Painting’s invoice of $5,256.00. She acknowledged that this invoice lacked detail but that she did her best to match the invoice to the Directive, which included dealing with coverage and overspray issues. From the total amount of $13,012.00 ($7,756.00 +$5,256.00) she subtracted the amount remaining on the original contract between the parties of $328.57 to calculate the total amount of administrative payout of $12,683.43.

Ortiz agreed that the purpose of the Fund was to put the Complainant back in the position the Complainant would have been if Respondent had done work that met the workmanship standards in the first place. She said that Complainant did not have to pay for all the work before seeking an award from the Fund.

Respondent, testified that he thought the hearing was to appeal Judge Lang’s findings that his workmanship failed to meet standards. He took issue with the Registrar’s actions in this matter. Respondent also testified that he viewed the administrative payout as excessive in that the Directive did not say anything about baseboards and Robert’s Painting decided on its own to paint sixty percent of the baseboards, which was not included in the parties’ original contract. He asked that the Robert’s Painting invoice be discounted by forty percent to reflect that only sixty percent of the baseboards were painted. He also requested that the amount of the replacement doors only be awarded to Complainant after she had paid for these replacement doors.

Complainant testified that she gave Robert’s Painting a copy of the Directive and told him to walk through the house and do what needed to be done. She said he wrote the invoice and that she paid Robert’s Painting the amount he billed her for the work.

The Registrar’s position was that during the hearing on the workmanship issues, Respondent estimated that completed the painting would be around $5,000.00. See Exhibit 4, ALJ Decision, FOF #7 (“Respondent testified regarding the remainder of the work to be corrected and completed and estimated that it would not take more than $5,000.00 to correct at the most.”) The Registrar noted that this testimony did not involve replacing doors and that Robert’s Painting invoice was only $256.00 more than that amount. The Registrar emphasized that the purpose of the Fund was to put Complainant back in the position she would have been had the original contract been completed to workmanship standards, not to ensure that Respondent paid as little as possible.

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.”

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. The evidence established that Complainant paid Robert’s Painting the amount invoice to perform corrective work on the Directive. In addition, the statute contains no requirement that Complainant expend funds for replacement doors before utilizing the Fund. The evidence showed that Complainant is entitled to two replacement doors to be made whole. As such, the Award of Administrative Payout should stand.

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 $12,683.47.

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, December 22, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors