ALJDEC decisions subject to certification as final

2017A-437-RFA-ROC · Registrar of Contractors · 2018-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Anthony E and Ceci M Zink,

PLAINTIFF,

v.

Handyman Randy LLC dba,

HMR Properties Services,

License No: 295636

DEFENDANT.

No. 2017A-437-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 23, 2018

APPEARANCES: Anthony Zink, Complainant, Jessica Ortiz, Arizona Recovery

Fund Examiner, Thomas Raine, Asst Attorney General, attorney for the Arizona Recovery Fund.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On January 12, 2015, the Arizona Registrar of Contractors (hereinafter , the “Registrar”) first issued License No., 295636, a Class R-62 Residential LLC to Randy Ray Cornelison, doing business as (“d/b/a”) Handyman Randy LLC d/b/a HMR Properties Services (hereinafter, “Handyman”). Administrative notice is taken of Handyman’s prior License record June 9, 2018 Such prior License record reflects that Respondent's License No. 295636 was first issued on January 12, 2015, was suspended from January 9, 2017 through January 19, 2017, for lack of bond; was suspended on February 4, 2017f for. Non-renewal; was revoked on July 12, 2017; was revoked on August 15, 2017 for failure to pay a civil penalty and as a result of the Complaint filed by Complainants herein, Handyman’s license was again revoked. Such prior License record also reflects that there was one prior resolved/settled/withdrawn complaint, and one previous complaint resulting in discipline against Handyman’s license.

On or about August 31, 2016, Complainants Anthony E and Ceci M Zink (hereinafter, “Zink”) signed a contract with Handyman for, among other things, installing tile in the master bathroom, office, and dining room; painting the home interior; and building an interior wall. [the “Contract”]. The total contract price was $14,800.00. Zink paid a $1,000.00 deposit at the time of the contract and another $5.000.00 before work commenced. As the project proceeded, Complainant was concerned with Handyman’s performance and narrowed the scope of the contract. Eventually, the work was to be completed for a total of $6,500.00.

On or about January 24, 2017, the Registrar received a Complaint against Handyman from Zink that alleged poor workmanship and abandonment at the Zink residence located at 22414 North 36 Way in Phoenix, Arizona 85050.

On February 24, 2017, The Registrar’s inspector, Steven Kline, conducted a Jobsite Inspection [“JSI”]. Respondent Handyman did not participate in the JSI. Inspector Kline issued a Corrective Work Order [“CWO”]. Handyman did not complete the work ordered by the CWO or as outlined in the initial contract or the amended contract.

On or about February 27, 2017, the Registrar issued a Citation alleging A violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”) and violation of A.R.S. § 32-1154(A)(16) (“Knowingly contracting beyond the scope of the license). Handyman timely filed an Answer to the Complaint.

The matter was set for hearing on May 23, 2018 before the Office of Administrative Hearings. On May 23, 2018, hearing was conducted. Handyman did not appear and no evidence was presented by the Respondent.

While the Registrar Complaint was pending, Zink filed a Small Claims action against Handyman for damages resulting from the underlying Complaint which ended in a judgment of $1,300.00 against Handyman. Mr. Zink testified that since August 7, 2017, Handyman has been consistently paying Zink the sum of $25.00 per week to extinguish the Handyman judgment. The parties at hearing stipulated on the record that the Tribunal may extrapolate the weekly payments to reach a final payment total, as of the date of this Order, of $1,300.00 paid to Zink by Handyman for damages resulting from the Contract.

The Final Order on Zink’s Complaint determined that Handyman abandoned the project in violation A.R.S. § 32-1154(A) (1) and Handyman knowingly contracted beyond the scope of license in violation of A.R.S. § 32-1154(A) (16).

Zink submitted to the Fund three bids from licensed contractors to repair or perform the work abandoned by Handyman. The lowest of the three bids totaled $2,497.89.

Mr. Zink testified that in the course of repairing or performing the work abandoned by Handyman, Mr. Zink utilized three unlicensed contractors to perform work on the job. The total charges for these three unlicensed contractors is found, by a preponderance of the evidence, to be $1.240.00

Notice of

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Recovery Fund Eligibility/Payout Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Respondent is deemed to have received the Notice of Recovery Fund Eligibility/Payout Hearing.

Complainant bears the burden of proof and must establish eligibility to recover from the Fund 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.”

A.R.S. § 32-1131(3) defines a “person injured” who is eligible to recover from the Fund as “any owner of residential real property which is classified as class three property under section 42-12003 and which is actually occupied or intended to be occupied by the owner as a residence . . . .”

A.R.S. §32-1132(A) provides an “injured person”

[M]ay be awarded...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. Actual damages shall not be established by bids supplied by or the value of work performed by a person or entity that is not licensed pursuant to this chapter and that is required to be licensed pursuant to this chapter. If the claimant has paid a deposit or down payment and no actual work is performed or materials are delivered, the award of actual damages shall not exceed the exact dollar amount of the deposit or down payment plus interest at the rate of ten per cent a year from the date the deposit or down payment is made or not more than thirty thousand dollars, whichever is less. Interest shall not be paid from the fund on any other awards under this chapter unless ordered by a court of competent jurisdiction...

“In applying a statute .its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Final Order on Zink’s Registrar Complaint established Handyman abandoned the Zink project in violation A.R.S. § 32-1154(A) (1) and Handyman knowingly contracted beyond the scope of license in violation of A.R.S. § 32-1154(A) (16)

Zink obtained three licensed contractor bids to perform the repair work called for by the abandoned underlying contract. The low bid submitted was for $2,497.89

By a preponderance of the evidence, the total contracted amount charged by Handyman for the Zink project is $6,500.00. Zink paid Handyman $6,000.00 in advance thereby reducing the amount remaining to be paid on the construction agreement to $500.00. The Fund correctly deducted this $500.00 from the lowest bidder’s total of $2,497.89.

By a preponderance of the evidence, it is determined that Zink utilized the services of three unlicensed contractors to perform Handyman’s abandoned Contract work. The total paid for work by unlicensed contractors, by a preponderance, is $1.240.00. The Fund correctly deducted this $1,240.00 from the lowest bidder’s total of $2,497.89.

Based upon the lowest received bid of $2,497.89 and after deduction of $500.00 representing the amount of the Handyman contract remaining to be paid, and after deduction of $1,240.00 representing the amount paid to unlicensed contractors to perform work abandoned by Handyman, the total amount allowable pursuant to A.R.S. §32-1132(A) is correctly calculated by the Fund in its Notice of Payout to be $697.89.

Complainants, Anthony E and Ceci M Zink did not establish that they are entitled to an award other than what was calculated and noticed to the Complainants in the Registrar’s March 12, 2018 Notice of Claim for Administrative Payout in this case in the amount of $697.89. Therefore, Complainants have failed to meet their burden of proof.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Registrar’s Final Order, Case Number 2017A-437-RFA-ROC be dismissed.

FURTHER IT IS RECOMMENDED a finding that the Registrar’s March 12, 2018 Notice of Claim for Administrative Payout in the total net amount of $697.89 is clearly supported by the evidence presented and should be confirmed.

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, June 10, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors