ALJDEC decisions subject to certification as final

2016A-2887-RFA-ROC · Registrar of Contractors · 2018-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CINDY MALDONADO,

Plaintiff,

v.

BEAR TILE & STONE INC,

License No: 291556

Defendant.

No. 2016A-2887-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 25, 2018

APPEARANCES: Cindy Maldonado, Plaintiff, Larry Maldonado, witness for the

Plaintiff, Becky Maldonado, witness for the Plaintiff, Branden Klippel, Witness for the Plaintiff, Marlee McCormick, Registrar of Contractors, Thomas Raine, Esq. Asst. Arizona Attorney General, attorney for the Registrar.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Background And Procedure

On or about April 25, 2014, the Arizona Registrar of Contractors (“the Registrar”) issued License No. 291556, a Class CR-48 Ceramic, Plastic And Metal Tile classification, to Bear Tile & Stone Inc. [hereinafter, “Bear Tile”]. Mr. Jerry Allen LaFrenierre is listed as the Qualifying Party and Member of Bear Tile. The address of record with the Registrar for Bear Tile is 5428 W Oraibi Drive, Glendale, AZ 85308-5058.

The Registrar received a Complaint against Bear Tile from Cindy and Larry Maldonado (Plaintiffs herein) alleging that Bear Tile had abandoned a tile installation for which they had made a $8,900.00 advance payment. The Registrar designated Complainants’ complaint as Case No. 2016-2887. The Registrar assigned Case No. 2016-2887 to its inspector, Steve Philpott, for investigation. Inspector Philpott performed a jobsite inspection and issued a Corrective Work Order. On or about August 26, 2016, the Registrar issued a Citation and Complaint in Case No. 2016-2887 against Bear Tile, charging violations of A.R.S. § 32-1154(A)(1) and (A)(12). Bear Tile failed to file a timely written answer to the Citation and Complaint in Case No. 2016-2887. In September 20, 2016, the Registrar issued a Decision and Order, deeming Respondent’s failure to answer the Citation and Complaint to be an admission of the charges contained therein under A.R.S. § 32-1155(B). As a result of Respondent’s admitted statutory violations in Case No. 2016-2887, the Registrar suspended Respondent’s license.

Plaintiffs herein subsequently made a claim to the Residential Contractors’ Recovery Fund (“the Fund”). Plaintiffs provided the Registrar with evidence sufficient to demonstrate their eligibility for payment from the Fund and to evidence its payment of deposit to Bear Tile in the amount of $8,

900.00. On or about March 21, 2018, the Registrar issued its Notice of Claim for Administrative Payout awarding Cindy and Larry Maldonado, Plaintiffs herein [hereinafter, “Maldonado”] the sum of $8,900.00 on their February 7, 2018 Claim against the Arizona Residential Contractors Recovery Fund.

On or about April 3, 2018, Bear Tile requested a hearing on the amount and the propriety of the proposed payout. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing.

On May 25, 2018, the Registrar issued a Recovery Fund Eligibility/Payout Hearing Notice setting a hearing at 1:00 am on June 25, 2018. The Registrar mailed copies of the Recovery Fund Eligibility/Payout Hearing Notice to 5428 W Oraibi Drive, Glendale, AZ 85308-5058, the Bear Tile address of record with the Registrar.

The aforesaid Recovery Fund Eligibility/Payout Hearing Notice informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

Bear Tile indicated in its timely file Request for Hearing that it wished to appear telephonically at the hearing in this matter.

Hearing was conducted, as scheduled, at 1:00 pm on June 25, 2018. Thomas Raine, Esq., counsel for the Registrar, advised that his paralegal, Ms. Marlee McCormick, had been in touch with Mr. Jerry Allen LaFrenierre by e-mail on May 25, 2018 to review with him the details for his appearance telephonically at the June 25, 2018 hearing. Ms. McCormick, who was present at the hearing and sworn, confirmed the said e-mail contact with Mr. Jerry Allen LaFrenierre by e-mail on May 25, 2018.

Mr. LaFrenierre did not request that the hearing be continued. Although the start of the hearing on June 25, 2015 was delayed 20 minutes, Bear Tile failed to appear through an authorized member, employee or attorney telephonically or otherwise. Consequently, Bear Tile did not present any evidence to dispute Plaintiffs’ claim to the Fund.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Recovery Fund Eligibility/Payout Hearing that the Registrar sent to Respondent at its address of record was reasonable and it is deemed to have received notice of the hearing.

Plaintiffs bear the burden of proof and must establish their eligibility for a payout and the amount of the payout from the Fund 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.”

The Registrar’s final decision in Case No. 2016-2887 established that Bear Tile violated the charged statutes.

Plaintiffs have, by a preponderance, demonstrated their eligibility for payment from the Fund.

Plaintiffs have established by a preponderance of the evidence, that they are entitled to a payout from the Fund in the amount of $8,900.00 reflecting the amount of payment made to Bear Tile as a deposit for work Bear Tile abandoned.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar order the Residential Contractors’ Recovery Fund to pay $8,900.00 to Plaintiffs Cindy and Larry Maldonado.

It is further recommended that the Registrar under A.R.S. § 32-1139(B) charge this amount in Case No. No. 2016-2887 to License No. 291556 previously issued to Defendant Jerry Allen LaFrenierre, Bear Tile & Stone Inc.

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, June 25, 2018

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors