FINACT2018A-2467-ROC-FinalAgencyAction-6575.pdf

2018A-2467-RFA-ROC · Registrar of Contractors · 2019-11-05

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Damien Allen Hill, Case No. 2018-2467

COMPLAINANT, Docket No. 2018A-2467-RFA-ROC v.

Integrity Pools and Spas Inc., FINAL ADMINISTRATIVE DECISION AND License Nos. ROC 135859, 173181 ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar

must provide written justification setting forth the reasons for the modification or rejection of each finding of

fact or conclusion of law.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it.

CONCLUSION AND ORDER

Because the Registrar has accepted the administrative law judge’s decision, that decision is the final

administrative decision in this case and becomes effective immediately.

FINAL NOTE

On page 10, line 22 replace “28,356.84.00” with “28,356.84.”

On page 3, line 7 replace “A.R.S. § 32-1132(A)” with “A.R.S. § 32-1132.01 (B) & (D).”

On page 3 line 13 after A.R.S. § 32-1132 include “et seq.,” and remove “A.R.S. § 32-1154(F).”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Dated October 22, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail October 22, 2019 to: Respondent Integrity Pools and Spas Inc 41704 N La Cantera Dr Anthem, AZ 85086

Complainant Damien Allen Hill 16228 E Gamble Ln Scottsdale, AZ 85262 Copy sent electronically this same date to: Registrar’s Counsel John Tellier, Assistant Attorney General

Office of Administrative Hearings Kay Abramsohn, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2018-2467 / DU

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IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Damien Allen Hill, No. 2018A-2467-RFA-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Integrity Pools and Spas Inc., DECISION ROC License: ROC 135859, 173181, RESPONDENT

HEARING: September 18, 2019 APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier. Complainant Damien Allen Hill and Dina Hill appeared representing themselves. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona Registrar of Contractors (Registrar) issued License No. 135859 and License No. 173181 to Respondent. 2. The Registrar received a Complaint against Respondent from an owner, the Complainant, alleging that the contracted-for work performed by or through Respondent at Complainant’s home did not comply with the Registrar’s workmanship standards (the workmanship complaint). 3. On February 26, 2019, the Registrar issued an Order entitled ORDER OF SUMMARY SUSPENSION, ORDER CONSOLIDATING CASES, AND NOTICE OF PROMPTLY INSTITUTED PROCEEDING. See Exhibit 2. Complainant’s complaint was one of the consolidated cases. 4. Following an administrative hearing and consideration of the hearing evidence presented therein in those consolidated matters, in an Administrative Law

Judge Decision dated April 2, 2019, the Administrative Law Judge affirmed the

Registrar’s Order of Summary Suspension and recommended that on the effective date

of the Registrar’s final order, that Respondent’s two licenses be revoked.1 See Exhibit

4.

Respondent failed to appear at that administrative hearing. See Exhibit 4. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 10.7.2019 ROC LEGAL

5. On April 10, 2019, the Registrar issued its final order, accepting the Administrative Law Judge’s decision; the final order was effective May 20, 2019. Id. 6. Complainant subsequently filed a claim with the Residential Contractors’

Recovery Fund (Fund) to recover the cost of completing the contracted-for work. See

Exhibit 5. As part of the recovery fund claim process, Complainant submitted bids from

two different contractors that Complainant had received to correct the pool project. See

Exhibit 8.

7. Upon its review of Complainant’s Fund claim, the previously-issued

corrective work directive and the parties’ contract, the Registrar issued a Notice of

Claim for Administrative Payout, finding that Complainant should receive from the Fund

an amount of $28,356.84. See Exhibit 10.

8. While Complainant did not contest the amount of the administrative

payout, Respondent requested a hearing, believing the payout amount was

inappropriate. See Exhibit 11.

9. Registrar subsequently referred the matter to the Office of Administrative

Hearings (OAH) for an evidentiary hearing. The hearing was scheduled and then

continued, on Respondent’s request, due to disclosure issues with the documents. Thereafter, Respondent filed an untimely response to Complainant’s request to accelerate the matter, which had been granted, and Respondent was given the opportunity to appear telephonically. However, Respondent failed to appear in this matter. 10. The Registrar’s recommended payout of $28,356.84.00 was determined by subtracting the unpaid balance on the contract from the lowest repair bid. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. 2. The burden of proof at an administrative hearing is generally upon the person who brings the action. Utah Construction Company v. Berg et al., 68 Ariz. 285, 205 P.2d 367 (1949); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Ariz. Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). The Notice of Claim for RECEIVED 10.7.2019 ROC LEGAL

Administrative Payout states that the party contesting bears the burden of proof to show entitlement to any amount other than that in the Notice. In this instance, Respondent bears the burden of showing, by a preponderance of the evidence, that the

proposed payout amount is not reasonable and proper.

3. Complainant is an injured person within the definition in A.R.S. § 32-

1131(3) and is, therefore, entitled to recovery from the Fund.

4. According to A.R.S. § 32-1132(A), an award from the Fund is limited to

“actual damages suffered by the complainant as a direct result of the contractor’s

violation,” but “[n]o more than the maximum individual award from the fund shall be

made on any individual residence or to any injured person.”

5. Under the facts and circumstances of this case, the Fund is empowered to

determine and award, based on actual damages, an appropriate payment to

Complainant pursuant to A.R.S. § 32-1132 and A.R.S. § 32-1154(F).

6. The evidence established that Complainant is entitled to an award in the

amount of $28,356.84, which shall be chargeable against Respondent and persons on

the two licenses as set forth in A.R.S. § 32-1139(B).

RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors make payment from the Residential Contractors’ Recovery Fund to Complainant in the amount of $28,356.84. 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, October 6, 2019 /s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director RECEIVED 10.7.2019 ROC LEGAL

Registrar of Contractors