ALJDEC decisions subject to certification as final
2017A-128-RFA-ROC · Registrar of Contractors · 2018-05-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Willie Benita Myers,
Complainant,
v.
Farco Construction, LLC,
License No: 236434
Respondent.
No. 2017A-128-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 19, 2018
APPEARANCES: Complainant Willie Benita Myers appeared on behalf of herself. Vaughn Farthing appeared on behalf of Respondent Farco Construction, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
The Registrar issued License No. 236434 to Farco Construction, LLC (“Farco”). Vaughn Farthing is Farco’s qualifying party.
On December 14, 2015, Complainant filed a complaint with the Registrar against Farco for poor work with regard to a construction project involving the remodeling of Complainants’ home at 7828 S. 31st Place, Phoenix, Arizona 85042.
The Registrar investigated the complaint.
On February 7, 2017, the Registrar issued a Directive to Farco. The Directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
COMPLAINT ITEMS RELATED TO INCOMPLETE WORK
* Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.
* Respondent shall schedule and pass all required city inspections and comply with any orders resulting thereof.
Complaint Item 1: Doorframe to laundry room not purchased, incomplete
Complaint Item 2: Door frame from garage entrance not purchased, incomplete
Complaint Item 3: Door to laundry room not purchased, incomplete
Complaint Item 4: Door from garage entrance not purchased, incomplete
Complaint Item 6: Door knobs missing from all interior/exterior doors, not purchased
Complaint Item 7: (2) french doors not purchased, incomplete
Complaint Item 8: Hot water heater not purchased
Complaint Item 9: AC unit not purchased
Complaint Item 10: Tiles in shower incomplete in master bathroom
Complaint Item 11: No drain purchased/installed for washer in laundry room
Complaint Item 12: No vent purchased/installed for dryer in laundry room
Complaint Item 15: Cooler unit removed from brick wall and hole not replaced/filled
Complaint Item 17: Faucet handles not purchased for stand alone faucet bathoom #2
Complaint Item 18: Recessed lighting in kitchen incomplete not purchased
Complaint Item 19: Dining room light fixture or ceiling fan not purchased
Complaint Item 20: Family room light fixture or ceiling fan not purchased
Complaint Item 21: Light fixture or ceiling fan in master bedroom not purchased
Complaint Item 22: Doors that are hung need paint
Complaint Item 23: All base boards need paint
Complaint Item 24: Shelves not purchased for laundry room
Complaint Item 27: Closet poles not purchased for bedrooms
Complaint Item 28: Remove shelving from garage
Complaint Item 29: Paint garage interior walls
COMPLAINT ITEMS RELATED TO POOR WORK
*Respondent shall correct the following by appropriate means
Complaint Item 14: Baseboards in master bath not level/straight/flush
Complaint Item 16: Stand alone faucet not secure in bathroom #2
Complaint Item 25: Bow in kitchen wall not corrected
Complaint Item 26: Floor tile as marked unlevel and misaligned
On February 22, 2017, the Registrar issued a Citation and Complaint charging Farco with violations of A.R.S. § 1154(A)(1),(A)(2); and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(22).
On April 18, 2017, a hearing was held before Administrative Law Judge (“ALJ Geddes”) Roger A. Geddes in the Office of Administrative Hearings, at which Zunicka Brown and Christopher Brown testified on behalf of Complainant. Registrar Investigator Matt Gunstra testified on behalf of the Registrar. Mr. Farthing testified on behalf of Farco. On May 8, 2017 , ALJ Geddes issued a recommended decision, finding that Farthing testified that “nothing was completed” and that Farthing agreed with all of the listed incomplete and deficient items in the Registrar’s Directive. ALJ Geddes found that Farthing testified that there was an addendum to the contract whereby Complainant agreed to purchase various items in the amount of almost $4,000 that were to be installed on the project under the contract so that Respondent could complete the project. AlJ Geddes found that there was no credible evidence that there was an addendum to the contract relating to the completion of the project. ALJ Geddes found that Complainant established that Farco’s license should be disciplined for a violation of A.R.S. §§ 32-1154(A)(1), 32-1154(A)(2), 32-1154(A)(3) and 32-1154 (A)(22).
On May 24, 2017, the Registrar issued a Final Administrative Decision and Order accepting ALJ Geddes’s decision.
On or about July 19, 2017, Complainant filed a claim to the Residential Contractors’ Recovery Fund (“Fund”) with the Registrar.
On January 25, 2018, 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 $23,692.62 in the form of payment issued by the Fund.
Farco filed a timely request for hearing on the Registrar’s Notice of Claim for Administrative Payout.
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.
A hearing was held on April 19, 2018.
At hearing, Mr. Farthing testified on behalf of Farco, and presented the testimony of Reginald White, and submitted exhibits 3 and 4. The Registrar presented the testimony of the Supervisor of the Recovery Fund, Marlee McCormick, and submitted exhibits 1 through 13.
Ms. McCormick testified that she a Legal Assistant in the Legal Department of the Recovery Fund. Ms. McCormick stated that she had personally reviewed Complainants’ claim for payment from the Fund. Ms. McCormick said that she determined that Complainant was eligible for payment from the Fund due to her actual damages.
Ms. McCormick testified that the Registrar must review all documentation that is necessary on a claim for a payout from the Fund before the Registrar makes a decision for a payout. Ms. McCormick stated that she reviewed the entire file in this matter. Ms. McCormick determined that a proper payout from the Fund for Complainant’s actual damages is the sum of $23,692.62.
Ms. McCormick testified that she created a Recovery Fund Cost spread sheet in order to determine Complainants’ actual damages. Ms. McCormick testified that she calculated Complainants’ actual damages by first determining which of the three bids she would use to calculate Complainants’ actual damages. Ms. McCormick did not consider the bid from Stilson Enterprises because it was not itemized. Ms. McCormick reviewed the two remaining bids, both from licensed contractors in good standing, and assessed whether the items listed were a part of the contract and directive. After disallowing several items on each bid, Ms. McCormick determined that the bid from A and H Construction LLC DBA: Phoenix Construction Group in the amount of $28,127 was the lowest. Ms. McCormick calculated Complainant’s unpaid balance by subtracting the amount of the contract by the amount that Ms. McCormick paid to Farco. Ms. McCormick determined that Complainant’s unpaid balance was $4,434.38. Ms. McCormick subtracted the unpaid balance in the amount of $4,434.38 from the amount of the lowest bid in the amount of $28,127 to determine Complainant’s actual damages. Ms. McCormick determined that Complainant’s actual damages were $23,692.62.
Ms. McCormick’s testimony is found to be credible.
Mr. Farthing contended that the Administrative Payout in the amount of $23,692.62 is exorbitant. Mr. Farthing testified he and Complainant agreed to an addendum of the original contract. Mr. Farthing contended that Ms. McCormick took no steps to verify that the amounts in the bids were the industry standard amounts. Mr. Farthing contended that the recovery fund payout was exorbitant.
Reginald White is not a registered contractor. However, Mr. White has worked for several contractors and mother owned a contracting company.
Mr. White testified that an interior laundry room door can cost from $45-%60. Mr. White testified that the labor required to install the door can be from $55-$85. Mr. White did not specify whether the labor amount represented an hourly rate or a flat fee.
Mr. White testified that door knobs can cost $10 - $15 each. Mr. White testified that the labor could be $15 - $20.
Mr. White testified that the installation of double French doors could cost from $600 - $200 depending on the situation and structure of the home.
Mr. White testified that each light fixture installation would cost $55.
Mr. White testified that the cost for fans was exorbitant.
Mr. White testified that it would cost $1 per square foot to remove floor tile and $2 - $3 per square foot to install new floor tile.b
Mr. White testified that he did not review the directive and observe the house and create a bid.
Mr. Farthing contended that the bids were over and above and things that were not a part of the contract were included in the calculation of the payout. Mr. Farthing contended that the work in Complainant’s home is 95% complete. Mr. Farthing testified that he and the Complainant agreed to a material list.
Administrative notice is taken of Farco’s License record as reflected on the Registrar’s public website on May 9, 2018. Such License record reflects that Floors Unlimited License No. 236434 was first issued on August 14, 2007, and is suspended. Farco’s license was suspended for non-renewal effective August 30, 2017 for non-renewal. The License record also reflects that that two complaints have resulted in discipline against Farco.
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. Respondent failed to establish by a preponderance of the evidence that the
values provided on the bid utilized by the Registrar were excessive.
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 $23,692.62.
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, May 9, 2018.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors