ALJDEC decisions subject to certification as final
2016A-584-RFA-ROC-RF · Registrar of Contractors · 2017-02-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John R Vickers Jr and Linda L Vickers
COMPLAINANTS
-v-
License No. CR-5.184166-D of
Swiss and Martin Shutters
RESPONDENT
No. 2016A-584-RFA-ROC-RF
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 27, 2017
APPEARANCES: Complainants John R. Vickers Jr. and Linda Vickers appeared on behalf of themselves. Shari Martin represented Respondent Swiss and Martin Shutters. The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas C. Raine.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
The Arizona Registrar of Contractors (“the Registrar”) issued License No. CR-5.184166-D to Respondent.
On February 19, 2016, the Registrar received a Complaint against Respondent alleging poor workmanship in a home remodeling contract. Respondent agreed to remodel the cabinets located in the kitchen and pantry of Complainants’ home. See Exhibit 1.
On June 2, 2016, after an inspection, Michael Springer, an investigator with the Registrar, issued a Directive finding poor workmanship. See Exhibit 2.
On June 30, 2016, as a result of the Complaint, the Registrar issued a Citation against Respondent charging a possible violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. See Exhibit 3.
On July 25, 2016, the Registrar issued a Final Administrative Decision and Order finding that Respondent had violated A.R.S. § 32-1154(A)(3) as charged in the complaint. Pursuant to the order, the Registrar suspended Respondent’s license.
On or about August 4, 2016, Complainants filed a claim to the Residential Contractors’ Recovery Fund (hereinafter “Fund”) with the Registrar. See Exhibit 5.
On November 7, 2016, the Registrar issued a Notice of Claim for Administrative Payout that provides, in relevant part, as follows:
After review of the claim and all supporting documentation, the Fund has determined that Complainants are to be awarded $21,338.82 in the form of payment issued by the Fund.
8. Respondent filed a timely request for hearing on the Registrar’s
Notice of Claim for Administrative Payout.
9. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding the amount and/or propriety of the payment from the Fund.
10. A hearing was held on January 27, 2016.
Hearing Evidence
11. The June 2, 2016 Directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
1. Repair trim that has fallen off.
2. Ensure a maximum gap of 1/8 inch at hinge side of doors.
3. Ensure doors and drawers all cover framed openings.
4. Ensure all doors and drawers are within 1/8 inch same horizontal plane of each other.
5. Ensure there are no doors or drawers warped more than 1/8 inch in 30 inches.
12. At hearing, Shari Martin (hereinafter “Ms. Martin”), testified on Respondent’s behalf. The Registrar presented the testimony of Doug Ulmer, (hereinafter “Mr.Ulmer”), a claims reviewer for the Registrar’s Recovery Fund. The Registrar also submitted seven exhibits.
13. Mr. Ulmer testified that he personally reviewed the entire file in this matter, including three bids. Mr. Ulmer testified that one of the bids submitted was from an unlicensed contractor. Therefore, Mr. Ulmer contacted Complainants and informed them that they needed to submit an additional bid. Complainants submitted an additional bid from Southwest Kitchen and Bath.
14. Mr. Ulmer testified that he reviewed three bids from Home Depot, Sears and Southwest Kitchen and Bath. Mr. Ulmer testified that he did not select the Home Depot quote in the amount of $34,108.00 because it was excessive. Mr. Ulmer also stated that he did not select the Sears quote in the amount of $33,122.39, because the quote provided insufficient details regarding the work that would be performed. Mr. Ulmer testified that he selected the bid from Southwest in the amount of $21,338.82, because the bid was from a licensed contractor and the cabinetry was appropriate.
15. Mr. Ulmer testified that he created a Recovery Fund Cost spread sheet in order to determine Complainants’ actual damages. See Exhibit 6. Mr. Ulmer testified that the contract amount of $13,157.00 was paid to Respondent by two consecutive payments. Mr. Ulmer stated that it is common that the repair bid is higher than the original bid because the new bidder is offering to redo the entire project. Mr. Ulmer testified that if the new contractor does not redo the entire work, the new contractor would be responsible for owning the original work.
16. Mr. Ulmer’s testimony is found to be credible.
17. Ms. Martin contended that the Administrative Payout in the amount of $21,338.82 is exorbitant. Ms. Martin contended that $21,338.82 was excessive because the contract amount was only $13,157.00. Ms. Martin also contended that the hinge gaps existed before Respondent performed work on the cabinets. Ms. Martin contended that originally, Complainants’ loved the work that Respondent performed.
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 Complainants’ actual damages. The award appears to properly remedy the workmanship violation for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainants receive a payout from the Residential Contractors’ Recovery Fund in the amount of $21,338.82.
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, February 16, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors