ALJDEC decisions subject to certification as final
2016A-4975-RFA-ROC · Registrar of Contractors · 2018-01-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
William Burkett,
PLAINTIFF,
v.
Ricketts Landscaping LLC,
License No: 280521
DEFENDANT.
No. 2016A-4975-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 3, 2018, at 8:30 AM
APPEARANCES: Deborah and William Burkett (“Complainants”); John Tellier (“Mr. Tellier” attorney for the Registrar of Contractors (“Registrar” or “ROC”)); Marlee McCormick (“Ms. McCormick” witness for the Registrar’s Recovery Fund); and Jim Dimond (“Investigator Dimond” Investigator for the Registrar).
NON-APPEARANCE: Ricketts Landscaping, LLC (“Respondent”)
ADMINISTRATIVE LAW JUDGE: Linda Marie Brown _____________________________________________________________________
In accordance with A.R.S. § 32-1154(G) Respondent timely files his Notice to request an administrative hearing to contest an administrative payout to Complainant. The Recovery Fund issued Notice of Claim for Administrative Payout upon its review of the claim, the Fund determined Complainants to be awarded $14,720.00. Based upon testimony and evidence, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order.
FINDINGS OF FACT
Respondent is the holder of License No. CR21.280521-D issued by the Arizona Registrar of Contractors.
On or about December 12, 2016, Complainant filed a Complaint with the Registrar alleging abandonment against Respondent of an underlying contract executed on or about February 25, 2015, for Respondent’s to resurface the driveway with a product that had a 10 year guarantee. Work was to be performed at their residence located at 13281 Main Street (PO Box 1235), Mayer, Arizona. Based on Complainant’s complaint, the project was $11,000.00, and Complainants paid $11,280.00.
The Complaint was assigned to Investigator Jim Dimond. Investigator Dimond performed a jobsite inspection and substantiated minimum workmanship, and issued a Directive on January 9, 2017 to remedy various violations by appropriate means to be complete no later than January 25, 2017.
On January 31, 2017, the Registrar issued Citation against Respondent citing violations of Charge 1: A.A.C. R9-9-108 minimum construction standards, and thereby of A.R.S. § 32-1154(A)(3); Charge 2: A.R.S. § 32-1154(A)(12) Failure in any material respect to comply with this chapter (1124(B)); Charge 3: A.R.S. § 32-1154(A)(12) Failure in any material respect to comply with this chapter (1158(B)); and Charge 4: A.R.S. § 32-1154(A)(22) failure to take appropriate correction action.
An evidentiary hearing was held on April 10, 2017. Both Respondent and Complainant were present. Upon testimony and evidence, the Administrative Law Judge (ALJ) issued its findings and recommended the Respondent be disciplined and license suspended for five (5) business days and pay a $250.00 civil penalty. The Registrar accepted the ALJs recommendation.
On or about June 20, 2017, Complainant’s claim for damages in the amount of $14,720.00 was received by the Registrar’s Recovery Fund. Complainant homeowner provided proof of payment, and three contractor bids.
The contractor bids were provided as follows: 05/02/2017 – Autumn Blast Construction, LLC proposed $14,720.00; 05/01/2017 – Diversified Concrete Crafters proposed $17,330.00; and 05/09/2017 – Yavapai Landscaping proposed $23,000.00.
Upon review of Complainant’s claim, the Registrar Recovery Fund issued its Notice of Claim for Administrative Payout in the amount of $14,720.00. The Notice provided a 15-day window for either party to contest the determination.
On August 30, 2017, Respondent timely e-filed its notice to request an administrative hearing.
The Registrar issued a Notice of Hearing to Respondent on September 12, 2017 at its address of Record of 2320 West Verde West Drive, Camp Verde, Arizona 86322-4926.
The Notice of Hearing informed the parties the “failure to attend the scheduled hearing is likely to result in an adverse ruling against you.”
On October 27, 2017, the Office of Administrative Hearings issued and mailed to Respondent’s address of record a Minute Entry of Hearing Continuance noticing the hearing scheduled for January 3, 2017 at 8:30 am.
Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
At hearing, Marlee McCormick, Claims Reviewer, testified that Complainants’ payout in this matter is determined upon a full evaluation of the jobsite inspection, the underlying Directive issued and findings from the Administrative hearing.
Ms. McCormick further testified that upon an information analysis and review of the scope of work, she then compares the underlying directive with the bids submitted by the Complainant. In comparison, the lowest bid of the three for actual harm to Complainant’s residence was selected as set forth in the Recovery Fund cost calculation spreadsheet.
Supplement information was also received from the Complainants as proof of payments to the lowest bid, Autumn Blaze Construction, LLC, to perform the repair work.
In closing, Mr. Tellier argued that the amount determined in the Notice of Administrative Payout should issue.
CONCLUSIONS OF LAW
The burden of proof at an administrative hearing is generally upon the person who brings the action. Utah Construction Company v. Berg et al., 68 Ariz. 285, 205 P.2d 367 (1949); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). The Notice of Claim for Administrative Payout states that the party contesting bears the burden of proof to show entitlement to any amount other than that in the Notice. In this instance, Respondent bears the burden of showing, by a preponderance of the evidence, that the proposed payout amount is not reasonable and proper.
Complainants are injured persons within the definition in A.R.S. § 32-1131(3) and is, therefore, entitled to recovery from the Fund.
According to A.R.S. § 32-1132(A), an award from the Fund is limited to “actual damages suffered by the complainant as a direct result of the contractor’s violation,” but “[n]o more than the maximum individual award from the fund shall be made on any individual residence or to any injured person.”
Under the facts and circumstances of this case, the Fund is empowered to determine and award, based on actual damages, an appropriate payment to Complainants pursuant to A.R.S. § 32-1132 and A.R.S. § 32-1154(F).
Because payouts from the Fund are limited to $30,000.00 per residence and per injured person, the Fund cannot pay Complainants more than $30,000.00 in total for actual damages suffered as a result of Respondent’s acts or omissions.
The copies of the Notice of Hearing that the Registrar mailed to Respondent and the minute entry issued by the Office of Administrative Hearings for continuance at its address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
The evidence established that Complainant is entitled to an award. Respondent failed to meet its burden of proof in challenging the payout by its failure to appear at hearing. The evidence of record supports an award to Complainant in the amount $14,720.00, which shall be chargeable against Respondent and persons on the license as set forth in A.R.S. § 32-1139(B).
RECOMMENDED ORDER
In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors make payment from the Residential Contractors’ Recovery Fund to Complainant in the amount of $14,720.00.
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 Decision will be 40 days from the date of that certification.
Done this day, January 23, 2018.
/s/ Linda Marie Brown
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors