ALJDEC decisions subject to certification as final
2017A-6143-RFA-ROC · Registrar of Contractors · 2018-05-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Georgiana Costinean,
COMPLAINANT,
v.
TGI HomeCrafters LLC ,
License No: 282219
RESPONDENT.
No. 2017A-6143-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 30, 2018
APPEARANCES: Georgiana Costinean, Complainant/Claimant, Rod Glarza,
attorney for the Complainant/Claimant, Kelly Barnes, Respondent, Rick Barnes, Respondent, Mike Warzynski, attorney for the Respondent, Jessica Ortiz, Fund Claim Examiner, Thomas Raine, Asst. Attorney General, Attorney for the Arizona Residential Contractors’ Recovery Fund.
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
_____________________________________________________________________
FINDINGS OF FACT
On or about November 7, 2017, Georgiana Costinean contracted with GI HomeCrafters LLC [hereinafter “TGI”] to remodel Costinean’s kitchen. Costinean paid TGI $15,000.00 as a deposit. Thereafter, on or about December 11, 2017, Costinean filed a Complaint with the Arizona Registrar of Contractors [hereinafter the “Registrar”] against TGI asserting abandonment and refusal to return her $15,000.00 deposit. The Registrar issued a Citation against TGI alleging TGI had abandoned this job in violation of A.R.S. §32-1154(A)(1) and had failed to comply with a Registrar’s Corrective Work Order without reasonable justification in violation of A.R.S.§32-1154)A)(22).
On January 24, 2018, the Registrar issued its Final Administrative Decision and Order in Case Number 2017-6143 finding that TGI “...violated the provisions of A.R.S. 32-1154(A)(1) and (22) as charged in the complaint.” The Registrar suspended TGI’s license for three days and ordered TGI to pay a civil penalty of $500.00.
On or about January 18, 2018, Georgiana Costinean filed a Claim with the Arizona Residential Contractors’ Recovery Fund [hereinafter, the “Fund”]. Ms. Jennifer Ortiz, Fund Claim Examiner, reviewed and researched the Costinean claim. Ms. Ortiz determined that Georgiana Costinean, at the time of entering the contract with TGI, was and is now the owner of the residence located at 1828 N. 11th Avenue in Phoenix, Maricopa County, Arizona. Ms. Ortiz confirmed that the residence is occupied, as contemplated by A.R.S. § 32-1132, by Georgiana Costinean. Ms. Ortiz confirmed that the residence is a Class 3 property under § 42-162, subsection A. Ms. Ortiz determined that Georgiana Costinean is an “injured person” eligible to receive the value of Costinean’s $15,000.00 deposit from the Fund.
On or about March 13, 2018, the Fund issued its Notice of Claim for Administrative Payout [hereinafter, the “Payout”] indicating the Fund had determined Costinean should be awarded payment from the fund of $15,000.00. On or about March 28, 2018, the Registrar received a request from TGI’s attorney requesting an Administrative Hearing indicating that TGI contests the propriety of payment of the $15,000.00 award because a Superior Court Complaint naming TGI and others claims damages in the same $15,000.00 arising from the same facts as the underlying Citation.
On May 30, 2018, hearing was conducted. Witnesses were sworn, but no witnesses were called to testify.
On the record, in its Opening Statement, the Respondent, by TGI’s legal counsel, stated that Respondent does not contest :
The underlying Citation,
The Final Administrative Decision and Order in Case Number 2017-6143, and its finding that TGI “...violated the provisions of A.R.S. 32-1154(A)(1) and (22) as charged in the complaint.”
The suspension of TGI’s license for three days and the order that TGI pay a civil penalty of $500.00
The Notice of Claim for Administrative Payout.
TGI, by counsel, submits that there is no dispute that the Payout is accurate, reasonable and proper. Counsel for TGI states the Respondent simply desires to make a record that the Notice of Claim for Administrative Payout may give rise to inconsistent or duplicate payments if the pending Superior Court case referred to hereinabove in ¶4 results in a judgement against TGI for the same conduct alleged in the Fund Claim herein. TGI does not assert or have any case law to support that because a concurrent civil suit is pending in the Maricopa Superior Court on the same or similar facts, the Fund may not proceed forward with the hearing in this matter.
The Complainant, the Respondent and the Fund have urged on the record that this Tribunal issue an order affirming the Payout.
CONCLUSIONS OF LAW
Mrs. Georgiana Costinean bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119.
A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).
To be eligible for a payout from the Fund, Mrs. Costinean must show that she is a “person injured” within the meaning of A.R.S. §32-1131(3), which provides:
Person injured" means 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 including community property, tenants in common or joint tenants who are damaged by the failure of a residential contractor or a dual licensed contractor to adequately build or improve a residential structure or appurtenance on that real property.
By a preponderance of the evidence, Georgiana Costinean, at the time of entering the contract with TGI, was and is now the owner of the residence located at 1828 N. 11th Avenue in Phoenix, Maricopa County, Arizona.
By a preponderance of the evidence, the residence at 1828 N. 11th Avenue in Phoenix, Maricopa County, Arizona is occupied by Georgiana Costinean.
By a preponderance of the evidence, the residence located at 1828 N. 11th Avenue in Phoenix, Maricopa County, Arizona is a Class 3 property under § 42-162, subsection A.
By a preponderance of the evidence, Georgiana Costinean has been damaged in the amount of $15,000.00 by TGI, a residential contractor or a dual licensed contractor, through TGI’s failure to adequately build or improve a residential structure...on [her] real property.”
Georgiana Costinean is an “injured person” eligible for payment from the Fund pursuant to A.R.S. §32-1131(3) to receive the value of Costinean’s $15,000.00 deposit.
By a preponderance of the evidence, the Fund’s Notice of Claim for Administrative Payout in this case is accurate, reasonable and in compliance with requirements of Arizona law.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar confirm the March 13, 2018 Notice of Claim for Administrative Payout in the amount of Fifteen Thousand Dollars ($15,000.00).
Done this day, May 30, 2018
/s/ Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Rod Galarza Esq.
9233 S 51st St
Phoenix, AZ 85044-5683
Attorney for Complainant
Michael Warzynski Esq.
Jardine Baker Hickman & Houston PLLC
3300 N Central Ave Ste 2600
Phoenix, AZ 85012-2514
Attorney for Respondent
Thomas Raine, Esq.
Asst. Attorney General
Licensing and Enforcement Section
2005 North Central Avenue
Phoenix, Arizona 85004
Jeffrey Fleetham, Director
Registrar of Contractors