ALJDEC decisions subject to certification as final

2017A-5830-ROC · Registrar of Contractors · 2019-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17, 2019 APPEARANCES: Complainant Anthony Moley represented himself. Complainant Candie Robertson represented herself. Assistant Attorney General John Tellier represented the Arizona Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On or about August 4, 2017, Complainants Anthony Moley and Candie Robertson agreed to pay $60,000 to Respondent Mammoth Construction, LLC (“Mammoth”) to complete the framing of their new home. 2. Complainants paid Mammoth $55,000 pursuant to the contract. 3. On or about November 20, 2017, Complainants filed a complaint with the Arizona Registrar of Contractors (“Registrar”), alleging poor workmanship on the part of Mammoth. 4. On or about March 5, 2018, the Registrar issued a Citation against Mammoth’s contractor’s license after conducting an investigation into the complaint. 5. Through the Citation, the Registrar alleged that Mammoth violated Ariz. Rev. Stat. “A.R.S.” section 32-1154(A)(2), (A)(3), and (A)(22). 6. Mammoth appealed the Citation and the matter was referred to the Office of Administrative Hearings (“OAH”) for an evidentiary hearing. 7. On June 7, 2018, Administrative Law Judge Roger Geddes (“Judge Geddes”) issued a decision finding that Mammoth had violated A.R.S. sections 32-1154(A)(2), (A)(3), and (A)(22). Judge Geddes recommended that Mammoth’s license be suspended. 8. On June 22, 2018, the Registrar issued an order adopting the recommended decision of Judge Geddes, effective August 1, 2018. 9. On or about July 2, 2018, the Registrar received Complainants’ application for a payout from the recovery fund. 10. Complainants performed the labor to correct the work performed by Mammoth. 11. Complainants submitted a bid to repair the work prepared by Mr. Moley’s construction company, AJ Moley Construction, Inc., with the application. AJ Moley Construction, Inc. does not hold an Arizona contractor’s license. 12. The Registrar requested that Complainants submit receipts for the materials purchased to the repair the work, and bids from Arizona licensed contractors. 13. Complainants submitted the receipts for the cost of materials. Complainants did not provide a bid from contractor who was licensed in Arizona. Complainants also submitted a letter to the Registrar which stated that they spent a total of $4,703.73 on materials. 14. On November 20, 2018, the Registrar issued a notice denying the claim because Complainants did not suffer actual damages. 15. The Registrar determined that Complainants’ actual damages were limited to the amount owing under the contract, less that amount spent on materials. 16. The amount that was still owed to Mammoth under the contract was $5,000. 17. After calculating Complainants’ receipts for materials, and disallowing those receipts which were beyond the scope of the contract, the Registrar concluded that the total cost spent by Complainants on materials was $4,789.04. 18. Because the amount that Complainants spent on materials was less than the amount Complainants owed under the contract, the Registrar concluded that Complainants did not suffer actual damages. 19. On December 10, 2018, the Registrar issued a notice setting the matter for hearing for January 18, 2019. The Notice of Heading provided that the issue set for determination was whether an award from the recovery fund was justified by the evidence. 20. A hearing was held on January 17, 2019. 21. Anthony Moley and Candie Robertson testified on behalf of themselves. The Registrar presented the testimony of Recovery Fund Reviewer Candie Robertson, and submitted exhibits 1, 11, 16, and 17. 22. Complainants contended that should be compensated from the recovery fund for their time and labor because they are experienced contractors and homeowners. 23. The Registrar contended that Complainants did not incur actual damages because they are not licensed contractors in Arizona, and Complainants performed the work themselves. The Registrar argued that contractors who perform repair work on their own home should not be compensated by an award from the recovery fund. See Munger Chadwick v. Farwest Development and Construction of the Southwest LLC, 235 Ariz. 125 (2014). CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[1] 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.”[2] 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.[3] The evidence presented at hearing showed that the amount required to complete and repair Complainants’ home was limited to the cost for materials, because Complainants completed the work themselves. The evidence presented at hearing showed that the amount left owing on the contract exceeded the cost of materials to repair the home. Therefore, the Registrar correctly determined that Complainants did not suffer actual damages as a result of Mammoth’s workmanship violations. Complainants did not establish that the Registrar’s denial was improper. ORDER IT IS ORDERED that Complainants’ appeal is dismissed. 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, January 18, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [2] Black’s Law Dictionary 1220 (8th ed. 1999). [3] See A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B) (1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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