ALJDEC decisions subject to certification as final

2018A-2467-RFA-ROC · Registrar of Contractors · 2019-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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. 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 This matter lies within the Registrar’s jurisdiction. 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 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. Complainant is an injured person within the definition in A.R.S. § 32- 1131(3) and is, therefore, entitled to recovery from the Fund. 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.” 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). 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 Registrar of Contractors ----------------------- [1] Respondent failed to appear at that administrative hearing. See Exhibit 4.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826