ALJDEC decisions subject to certification as final

2017A-5408-ROC · Registrar of Contractors · 2019-05-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2019 APPEARANCES: Alysia and Patrick Starr, Complainants. Marlee McCormick, ROC Legal Assistant and Claims Examiner, John Tellier, Esq. Asst. Attorney General and ROC legal counsel, Arnold Perez, Respondent and Qualifying Party.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT On August 2, 1999, the Arizona Registrar of Contractors (the “Registrar”) issued License No. 147543, a Specialty Residential R-9 Concrete Class to Sierra Deck Inc., (“Respondent”). The Workmanship Complaint (Case Number 2017A-5408-CHC-ROC) On or about October 25, 2017, Alysia Jean and Patrick Staar (Complainants), filed a Complaint against Respondent with the Registrar alleging poor work in connection with pool decking work performed by Respondent at Complainants’ residence in Chandler, Arizona. The Registrar issued a Citation against Respondent in Case Number 2017A- 5408-CHC-ROC charging, among others, violations of A.R.S. § 32- 1154(A)(3)[1] and A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing.[2] On April 10, 2018, hearing on the Complaint and Citation was conducted. On May 11, 2018, the Registrar issued a Decision and Order in Case Number 2017A-5408-CHC-ROC finding that Respondent violated A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). As a penalty for Respondent’s violations, the Registrar’s Decision and Order suspended Sierra Deck, Inc.’s, License Number 147543 for two days. The Registrar’s Decision and Order became final on June 20, 2018.[3] The Claim to the Residential Contractors’ Recovery Fund On or about August 14, 2018, the Registrar received Complainant’s Claim[4] in the amount of $11,546.12 to the Residential Contractors’ Recovery Fund (“the Fund”). The Registrar’s Fund Claims Reviewer, Marlee McCormick, analyzed Complainant’s claim to the Fund. Claims Review determined Claimant was eligible for payment from the fund. On October 19, 2018, the Registrar issued a Notice of Claim for Administrative Payout in the amount of $12,327.66. The Registrar received Respondent’s timely request for hearing and the Registrar referred the matter to the OAH for an evidentiary hearing. A recovery fund payout hearing was held on April 16, 2019.. Complainant testified and submitted exhibits, including numerous photographs. The Registrar presented the testimony of Claims Reviewer Marlee McCormick and presented 15 exhibits. Arnold Perez, Respondent’s Qualifying Party and corporate officer, appeared but did not testify, presented no exhibits and made no argument on its behalf.

Hearing Evidence Claims Reviewer Marlee McCormick testified that she calculated the Fund payout by adding the total amount that Complainant paid to complete the job

($12,327.66) to the amount paid to Respondent ($6,997.00) and deducting the amount of Respondent’s contract ($6,997.00) resulting in a $12,327.66 payout. The Fund offered 15 Exhibits in support of its payout determination.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[5] Complainant bears the burden of proof to establish the amount that Complainant is entitled to recover from the Fund by a preponderance of the evidence.[6] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] A.R.S. § 32-1132(A) provides the method of calculating the amount that a homeowner is entitled to recover from the Fund for a contractor’s statutory violations, in relevant part as follows: An award from the [F]und 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 . . . .

RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar order the Residential Contractors’ Recovery Fund to pay $12,327.66 to Complainants Alysia and Patrick Staar It is further recommended that under A.R.S. § 32-1139(B), the Registrar charge $12,327.66, plus interest at a rate of ten percent a year, to Respondent Sierra Deck Inc., License No.147543 . 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 2, 2019.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website [3] ROC Exhibit 8. [4] ROC Exhibit 9 [5] See 32-1101 et seq. [6] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [7] See A.A.C. R2-19-119(B)(2). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826