ALJDEC decisions subject to certification as final
2017A-796-RFA-ROC · Registrar of Contractors · 2018-05-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ernestine S. Ruiz,
COMPLAINANT,
v.
Hansen Brothers Incorporated,
License No: 177301, 106084, 113051
RESPONDENT
No. 2017A-796-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 3, 2018
APPEARANCES: Complainant Ernestine S. Ruiz appeared on behalf of herself. James Hansen appeared on behalf of Respondent Hansen Brothers Incorporated. Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On March 19, 2018, the Registrar of Contractors, (“Registrar”), issued a “Notice of Recovery Fund Eligibility/Payout Hearing” setting the above-captioned matter for hearing on May 3, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.
The Notice shows that the hearing was set to determine whether an award and payment from the Contractors’ Recovery Fund pursuant to Ariz. Rev. Stat. section 32-1154(F) is justified by the evidence.
Complainant Ernestine S. Ruiz appeared and testified. The Registrar presented the testimony of Jessica Ortiz, a Recovery Fund claims reviewer, and submitted exhibits 1 through 9.
On or about March 17, 2015, Complainant entered into a contract with Respondent wherein Respondent would repair her home located at 468 W. Duane Avenue in Benson, Arizona. The contract was for $10,700.
On or about February 10, 2017, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent. Complainant alleged that the caulking in the shower and the back door weather stripping was peeling off. Complainant also alleged that the kitchen facets were creating a noise, the wash basin sink was leaking, the cold air was coming through the window, and that the shower panel was pulling away from the wall.
On March 29, 2017, Investigator Michael Springer of the Registrar conducted a jobsite inspection.
Investigator Springer substantiated Complainant’s allegations regarding the deficiencies related to the caulking in the shower, the shower panel and the back door weather stripping. Investigator Springer did not substantiate the allegations regarding a wash basin sink leak and cold air coming through the window. Investigator Springer determined that the noise from the kitchen faucets was a warranty item.
On April 11, 2017, Investigator Springer issued a Directive. The Directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
1. Correct back door where not functioning correctly.
2. Correct shower panel that is not flush to wall at bottom.
3. Correct shower to meet section 307.2 of the IRC. Wood materials not allowed.
On May 8, 2017, the Registrar issued a Citation against Respondent.
Respondent filed a timely appeal to the Citation and the matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
A hearing was held on July 19, 2017.
On July 20, 2017, an Administrative Law Judge (“ALJ”) concluded that Respondent’s work on Complainant’s shower and back door was not done in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.
On August 7, 2017, the Registrar issued a Final Administrative Order and accepted the ALJ’s decision.
On or about January 4, 2018, Complainant filed a claim with the Registrar’s Residential Recovery Fund (hereinafter “Recovery Fund”).
Complainant submitted a bid for repairs in the amount of $3,000 with her claim. Complainant received a payout from Respondent’s bond company in the amount of $3,000 for the repairs.
On February 7, 2018, the Registrar issued a “Notice and Order of Denial of Recovery Fund Claim”. The Registrar informed Complainant that her request for payment from the Fund had been denied.
The Registrar denied the claim because it found that Complainant had not
suffered any actual damages under Ariz. Rev. Stat. section 32-1132(A).
On or about February 26, 2018, Complainant filed an appeal to the February 7, 2018 Notice and Order of Denial of Recovery Fund Claim . Complainant’s appeal provides, in relevant part, as follows:
...............
I did receive funds to repair 1 wall in the shower [and] the back door frame
I have more damages done [and] not repaired by contractor that I didn’t have before.
At hearing, Complainant did not dispute that she received $3,000 to correct the damage to her shower and back door. However, Complainant contended that she should receive a payout for damages to her porch and furnace, and for the water basin sink. Complainant also testified that the issues related to her porch and furnace, and the water basin sink leak existed at the time that she filed the complaint.
The Registrar contended Complainant is seeking a payout for items that were not a part of the complaint or were unsubstantiated by the Registrar’s investigator.
CONCLUSIONS OF LAW
Complainant 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).
Ariz. Rev. Stat. section 32-1132(A) provides, in relevant part, as follows:
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.
It is undisputed that Complainant received a payout from Respondent’s bond company to repair the damage caused by Respondent to her shower and back door. Complainant’s allegation that Respondent caused a water basin leak was unsubstantiated by the Registrar’s Investigator. Complainant did not allege in her complaint that Respondent damaged her furnace and porch.
Consequently, the Registrar appropriately denied Complainant’s Recovery Fund claim.
ORDER
IT IS ORDERED that Ernestine S. Ruiz’s 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 is forty days after the date of that certification.
Done this day, May 23, 2018
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors