ALJDEC decisions subject to certification as final

2017A-1762-RFA-ROC · Registrar of Contractors · 2018-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kay H Woods,

COMPLAINANT,

v.

AC in AZ LLC dba,

Ballard AC & Heating,

License No: 296644

RESPONDENT.

No. 2017A-1762-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 22, 20187, 1:00 P.M.

APPEARANCES: No appearance on behalf of Complainant or Respondent; Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. AC in AZ LLC dba, Ballard AC & Heating (Respondent), is the holder of License Number 296644 issued by the Registrar of Contractors (Registrar).

2. On or about June 15, 2015, Kay Woods (Complainant) entered into contract with Respondent for construction work to be performed at 10118 W. Desert Rock Drive, in Sun City, Arizona.

3. On or about March 31, 2017. Complainant filed a Complaint against Respondent alleging abandonment and poor workmanship. (Registrar Exhibit 1). Thereafter, a Directive, dated May 9, 2017, was issued by the Registrar requiring corrective work to be undertaken by Respondent by May 26, 2017. (Registrar Exhibit 2). When all Directive items were not timely corrected, a Citation was issued to Respondent, dated May 31, 2017, for the alleged violations A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). (Registrar Exhibit 3).

4. Due to Respondent’s failure to file a timely Answer, the Registrar issued a Final Administrative Decision and Order on June 22, 2017, finding that Respondent had violated A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22) as charged in the Complaint,. (Registrar’s Exhibit 4). Pursuant to the Order, the Registrar revoked Respondent’s license and required that Respondent pay a civil penalty of $500.00. (Registrar’s Exhibit 4).

5. On or about August 17, 2017, Complainant filed claim 2017-1762 against license number 296644 with the Residential Contractors’ Recovery Fund (“Recovery Fund”) seeking the amount of $10,391.00 (Registrar’s Exhibit 5).

6. Claims Reviewer of the Recovery Fund Jessica Ortiz reviewed all documentation in claim 2017-1762. In Ms. Ortiz’s review, she noted the Complainant had already received the maximum amount allowable from the Fund of $30,000.00 on claim 2012-2889 against another contractor, Firebird Contracting, LLC.

7. On December 4, 2017, the Registrar issued a Notice and Order of Denial of Recovery Fund Claim. (Registrar’s Exhibit 8).

8. Complainant 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 Recovery Fund. A hearing was held on March 22, 2018, at 1:00 P.M.

10. At hearing, the Registrar presented the testimony of Jessica Ortiz. The Tribunal received and admitted the Respondent’s exhibit numbers 1 - 9 and the Registrar’s exhibit numbers 1 - 10.

11. Jessica Ortiz testified on behalf of the Registrar that she had personally reviewed Complainant’s claim for payment from the Recovery Fund. Ms. Ortiz said that she determined that Complainant was not eligible because she had previously received $30,000.00 from the Recovery Fund pursuant to a Default Decision, Order, and Award in connection with the Case No. 2012-2889. (Registrar’s Exhibits 9, 10). She further testified that the previous $30,000.00 recovery related to the same residence as is the subject of the current claim to the Recovery Fund.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. In order to obtain an award from the Recovery Fund, an applicant must provide proof to establish by a preponderance of evidence that they are eligible pursuant to A.R.S. § 32-1131, et seq. Further, if eligible, an applicant must establish by a preponderance of evidence that damages sought are within the limitations of compensability as set forth in A.R.S. § 32-1132(A). See Arizona Administrative Code Rule 2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372 (1952).

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 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.” BLACK’S LAW DICTIONARY at p. 1220 (8th ed. 1999).

4. The Registrar’s final decision in the underlying workmanship case established that Respondent did not comply with the Registrar’s workmanship standards and that Complainant potentially was a person who had been injured by Respondent’s violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). The only issue in the hearing on Complainant’s claim to the Recovery Fund is the measure of their damages.

5. A.R.S. § 32-1132(A) describes the measure of damages that an eligible homeowner is entitled to recover from the Recovery Fund in relevant part as follows:

The residential contractors' recovery fund is established, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter may be awarded in the county where the violation occurred an amount of not more than thirty thousand dollars for damages sustained by the act, representation, transaction or conduct. An 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. . . . No more than the maximum individual award from the fund shall be made on any individual residence or to any injured person.

6. An award from the Recovery Fund is subject to a limit of “not more than thirty thousand dollars” and no more than the maximum individual award from the Fund shall be made on “any individual residence or to any injured person.” Complainant previously received a $30.000.00 award from the Recovery Fund in 2012 relating to the same residence for which she now seeks an award from the Recovery Fund. Therefore, she has already received the maximum amount allowable under A.R.S. § 32-1132(A).

7. Accordingly, the Registrar did not err in denying a payout to Complainant from the Recovery Fund.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that on the effective date of the final order in this matter, that Complainant’s claim to the Residential Contractors’ Recovery Fund be denied with no payment to Complainant from the Recovery Fund.

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 five days from the date of that certification.

Done this day, April 10, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors