ALJDEC decisions subject to certification as final

2017A-2367-RFA-ROC · Registrar of Contractors · 2018-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cynthia Susanne Woodman,

COMPLAINANT,

v.

Jennie Marie Baker

dba Triple E Roofing,

License No: 279725,

RESPONDENT.

No. 2017A-2367-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 29, 2018 at 9:00 AM.

APPEARANCES: Cynthia Woodman (“Complainant”) appeared on her own behalf. Assistant Attorney General Thomas Raine appeared on behalf of the Registrar of Contractors (“the ROC”), with Marlee McCormick as a witness. No appearance(s) on behalf of Jennie Marie Baker and/or Triple E Roofing (“Respondent”). Lucille Woodman observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the ROC.

FINDINGS OF FACT

Background and Procedure

On or about May 05, 2017, Complainant filed a complaint with the ROC alleging that Jennie Marie Baker (doing business as Triple E Roofing), License No. 279725, had performed poor work on the new roof that she had installed on her residence located at 1305 Central Avenue, Safford, Arizona 85546.

The complaint was assigned to Investigator Michael Springer. Investigator Springer conducted a Jobsite Inspection on May 22, 2017, and substantiated nine of the thirteen complained of issues. In a Directive From The Registrar issued on May 25, 2017, Ms. Baker was advised to remedy the nine specified violations and provide written proof of completion to the ROC no later than 5:00pm on June 12, 2017.

On June 13, 2017, a Citation was issued and sent certified mail to Ms. Baker’s address of record charging her with failure to meet minimum construction standards per Ariz. Rev. Stat. § 32-1154(A)(3) and Ariz. Admin. Code R4-9-108, and for failing to take corrective action after a written directive was issued by the ROC per Ariz. Rev. Stat. § 32-1154(A)(22).

On June 28, 2017, Ms. Baker filed a timely Answer to the Citation, stating that the deadline to comply with the Directive had been incorrectly stated and was actually June 28, 2017, and she requested another week to comply. Ms. Baker did not comply by the extended deadline.

The ROC referred the matter to the Office of Administrative Hearings (“OAH”), an independent State agency, for an evidentiary hearing which took place on August 24, 2017. Although a copy of the Notice of Hearing was mailed to Ms. Baker’s address of record, she made no appearance. Complainant and Investigator Springer appeared and provided testimony. Administrative Law Judge Diane Mihalsky issued her Recommended Order on August 30, 2017.

The ROC issued a Final Administrative Decision and Order on September 18, 2017, accepting ALJ Mihalsky’s Recommended Order.

On February 28, 2018, Complainant filed a claim for payment with the Residential Contractors’ Recovery Fund (“the Fund”), in the amount of $16,102.00, pursuant to Ariz. Rev. Stat. § 32-1154(G).

On March 29, 2018, the ROC issued a Notice of Claim for Administrative Payout notifying Complainant that she was awarded $2,772.00 from the Fund.

On April 09, 2018, the ROC received an appeal letter from Complainant contesting her award amount from the Fund.

Again, the ROC referred the matter to OAH for an evidentiary hearing which took place on June 29, 2018, to determine whether Complainant’s award amount was appropriately calculated.

Hearing Evidence

At the hearing, Complainant testified on her own behalf, and Marlee McCormick testified on behalf of the Fund.

Ms. McCormick testified that the Fund’s award to Complainant for $2,772.00 was calculated by taking the three-part bid provided by Complainant for $16,102.00 and reduced it by $3,500.00 for “wood sheathing” because the ROC determined that it was not a basis for Ms. Baker’s original discipline. Ms. McCormick testified that the award was further reduced by $9,830.00 because the contract between Complainant and Ms. Baker had not been paid. Ms. McCormick also testified that the Fund only considered the amount of the bid as offered by Complainant, and could not adjust or inflate the award due to an increase in the cost of materials or labor.

Complainant testified that she was informed by Investigator Springer that she won her first appeal hearing because of the wood sheathing issue. Complainant did not argue that the ROC was technically incorrect in reducing her award by $3,500.00 for wood sheathing, only that she believed she should be awarded that amount because it was her belief that the underlying sheathing issue had been adjudicated in her favor by ALJ Mihalsky. However, Complainant admitted that she did not review ALJ Mihalsky’s decision and further conceded that the cost of wood sheathing repairs, if any indeed were necessary, could not be determined until, if, and when roofing materials were removed. During her testimony, Complainant acquiesced to the ROC’s assertion that her award was only reduced by $3,500.00 once, not twice as she originally argued in her appeal letter.

Complainant also testified that the contractor who supplied the bid she submitted to the ROC along with her Complaint increased the bid amount by $598.00 due to an industry increase in material costs, and that the ROC should increase her award by that amount. Though the issue of the increase in material costs was not mentioned in her appeal letter, Complainant testified that she should not bear the burden of the increased cost, but did not offer any legal explanation as to why the ROC should be held responsible.

Complainant conceded that she had not paid Ms. Baker any monies on their contract. However, Complainant did not address the ROC’s reduction of the $9,830.00 contract price from her award for that reason.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of establishing by a preponderance of the evidence that the Fund’s payout amount was incorrect pursuant to Ariz. Rev. Stat. § 32-1154(F).

“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.”

Here, the ROC soundly established how Complainant’s payout award amount was properly calculated at $16,102.00 and then appropriately reduced to $2,772.00. Complainant did not provide any binding authority to show that the Fund’s calculations on her initial award calculation was incorrect, or that the reductions on the award were applied inappropriately. Moreover, Complainant did not provide any evidence to support her argument that her payout award amount should be increased by to $598.00, per operation of law, to accommodate the alleged increase in materials.

Notably, Complainant’s reliance on Investigator Springer’s alleged assertion regarding the underlying reason for her prior favorable decision is not credible. Complainant received copies of Inspector Springer’s inspection notes, the Directive and Citation issued by the ROC, as well as ALJ Mihalsky’s decision and the ROC’s Final Administrative Decision and Order, which all explicitly state that it could not be determined without removing roofing tiles whether Respondent was liable for those issues.

Based on the credible and available evidence in the record, Complainant has not sustained her burden of proof in this matter. As such, her appeal should be denied.

RECOMMENDED ORDER

Based on the foregoing facts and conclusions of law,

it is recommended that the ROC affirm the Notice of Claim for Administrative Payout dated March 29, 2018, and deny Complainant’s request to amend the payout amount from the 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 forty (40) days from the date of that certification.

Done this day, July 19, 2018.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors