ALJDEC decisions subject to certification as final

2017A-5411-RFA-ROC · Registrar of Contractors · 2020-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Vern Wilson, Shirley Wilson, and Paula O’Neal

COMPLAINANT

Dun Rite Construction & Handiworks LLC,

ROC License: ROC 308965,

RESPONDENT

No. 2017A-5411-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 14, 2020

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier. Complainants Vern Wilson, Shirley Wilson, and Paula O’Neal appeared on their own behalf. Mike Burch, Owner and Qualifying Party, appeared on behalf of Respondent Dun Rite Construction & Handiworks LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (Registrar) issued License No. 308965 to Respondent.

On or about October 25, 2017, the Registrar received a Complaint against Respondent from Complainant alleging Respondent had done poor work on Complainant’s project (the workmanship complaint).

As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158(B); and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In his March 13, 2018 Decision, Administrative Law Judge Roger Geddes considered Respondent’s arguments and concluded, among other things, that Complainants established that Respondent violated A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). Specifically, Judge Geddes found that Complainant’s rejection of Respondent’s conditional offer to complete the corrective work only if Complainants moved all the furniture out of the home at their own expense and paid for all necessary materials did not constitute a valid justification for Respondent not performing the corrective work

On May 5, 2018, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a five day suspension.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of completing the corrective work. As part of the claim process, Complainant submitted bids from three different contractors that Complainant had received to correct the project.

After reviewing the bids and the scope of the corrective work identified in the written directive, the Registrar requested additional bids from Complainant to more accurately address the work that was identified in the written directive.

On February 14, 2020, the Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s was entitled to a payout from the Fund in the amount of $9544.74.

Respondent appealed the payout from the Fund. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing. Hearing was held on May 14, 2020.

Shaquira Adebule, Legal Assistant, testified that she reviewed the Directive from the Registrar that had been issued, Judge Geddes’ Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Ms. Adebule concluded that a compilation of the bids from Full Spectrum Contracting LLC and J & S Construction LLC resulted in the lowest total to repair or complete the project. Ms. Adebule allowed $8436.00 from the Full Spectrum Contracting LLC bid and $1508.74 from the J & S Construction LLC bid less $400.00 still owing on the underlying contract.

Mr. Burch testified that Complainants were being disingenuous because none of the work in the bids had been completed. Mr. Burch also argued that Respondent remained willing to perform the corrective work and should be allowed to do so. Mr. Burch asserted that the bids Complainants submitted were from friends of theirs and were inflated to allow an increased payout from the Fund.

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.”

Respondent had an opportunity to perform all of the corrective work identified in the written directive following its issuance from the Registrar and failed to do so. Respondent is not entitled under an ongoing opportunity to correct work it originally failed to perform properly.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is accordingly entitled to a payout from the Fund in the amount of $9544.74.

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 $9544.74.

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.

-54864001

001

-137160-45720000Done this day, June 2, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000