ALJDEC decisions subject to certification as final

2018A-2687-RFA-ROC · Registrar of Contractors · 2020-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Abdi Adschir Mussé,

COMPLAINANT,

v.

AZ Century Pool Plastering LLC,

ROC License: ROC 289426,

RESPONDENT.

No. 2018A-2687-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 06, 2020 at 9:00 AM.

APPEARANCES: Richard Hundley Esq. appeared on behalf of Adbi Mussé (“Complainant”). Assistant Attorney General Sarah Asta Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Daniel Edwards as a witness. No appearance(s) by or on behalf of AZ Century Pool Plastering LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

According to the Registrar’s public website, on or about January 22, 2014, the Registrar issued License No. 289426, specialty dual CR-36 plastering contracting license, to Respondent. Debriorn Marie Lizotte is the Qualifying Party and Member on this license. Respondent’s address of record on the license is 20235 N. Cave Creek Rd. #104-228 Phoenix, AZ 85024-4952.

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On April 06, 2020, License No. 289426 was suspended by the Registrar. There are no open complaints against the license, but the license has been disciplined by the Registrar on 6 prior occasions. The license did have a $6,750.00 surety bond issued by RLI Insurance Company effective January 12, 2018, which was cancelled on September 13, 2018.

On or about June 11, 2018, Complainant filed a complaint against Respondent with the Registrar alleging abandonment. In the complaint, Complainant alleged that on or about April 12, 2018, Complainant and Respondent entered into a contract whereby Respondent agreed to perform residential pool remodeling services for Complainant for the sum total of $4,500.00, and Respondent failed to complete the project as contracted. The Registrar received the complaint on June 13, 2018, whereby it was designated Complaint No. 2018-2687 and assigned to Mike Gunstra (“Investigator Gunstra”) for investigation.

On June 25, 2018Investigator Gunstra completed his inspection of the project. Respondent was not in attendance. Ultimately, Investigator Gunstra determined that Respondent begun work on the project but had not completed it, and the work Respondent had performed fell below the Registrar’s minimum workmanship standards.

On June 25, 2018, a Directive From The Registrar (“Directive”) was issued which instructed Respondent to complete the project per contract and provide written proof of completion to the Registrar no later than 5:00pm on July 12, 2018. Respondent was further advised that the plumbing portion of the parties’ agreement was outside the scope of its license, and put on notice that it was not permitted to perform or subcontract work of that nature.

On July 12, 2018, a Citation was issued and sent certified and first class mail to Respondent’s address of record charging Respondent with abandonment of contract in violation of Ariz. Rev. Stat. § 32-1154(A)(1), failure to meet minimum construction standards in violation of Ariz. Rev. Stat. § 32-1154(A)(3) and Ariz. Admin. Code R4-9-108, knowingly contracting beyond the scope of a license in violation of Ariz. Rev. Stat. § 32-1154(A)(16), and for failing to take corrective action after a written directive was issued by the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22). Respondent was advised to submit a written Answer to the Registrar by July 27, 2018, and that failing to do so would constitute an admission pursuant to Ariz. Rev. Stat. § 32-1155(B).

Respondent did not submit an Answer to the Registrar.

On July 31, 2020, the Registrar issued a Final Administrative Decision and Order to the parties whereby Respondent was held to be in violation of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(16), and 32-1154(A)(22). As such, the Registrar revoked Respondent’s license under Ariz. Rev. Stat. §§ 32-1154 and 32-1155.

On April 11, 2019, the Registrar received a claim for payment with the Residential Contractors’ Recovery Fund (“the Fund”) from Complainant. Complainant did not indicate a specific amount he anticipated to receive from the Fund, but did specifically request a deposit refund of $1,500.00.

On May 02, 2019, in a subsequent affidavit from Complainant received by the Registrar, Complainant stated, in pertinent part, that he had spent a total of $11,235.75 to remediate the underlying pool project. Complainant concluded by stating, “Anything you can do in this matter within the law governing the recovery fund will be greatly appreciated.”

On February 06, 2020, the Registrar issued a Notice of Claim for Administrative Payout which held Complainant was awarded $1,071.36 from the Fund.

On February 02, 2020, the Registrar received an appeal letter from Complainant contesting his award amount from the Fund.

On February 21, 2020, the Registrar referred the matter to the Office of Administrative Hearings (“OAH”) for an independent evidentiary hearing on April 06, 2020. The issue at hearing was to determine if the Complainant’s award from the Fund was appropriately issued and properly calculated pursuant to Ariz. Rev. Stat. § 32-1154(F), as justified by the evidence.

Hearing Evidence

At the hearing, the Registrar presented the testimony of Daniel Edwards and submitted Exhibits 1-17. Complainant testified on his own behalf and submitted Exhibit A. The Notice of Hearing and electronic hearing file (“Agency File”) were also admitted into the record as their own exhibits. The substantive facts are as follows:

Complainant owns residential property located at 122 N.9th Ave, Phoenix, AZ 85007, which is the site of the underlying project at issue. On occasion, Complainant also uses this property as private hotel.

Prior to filing an application with the Fund, Complainant filed a claim with Respondent’s bond. Complainant’s application was denied because the claim failed to “establish a case against the principal within the coverage of the bond.”

Mr. Edwards is a Legal Assistant II for the Registrar. Mr. Edwards made the determination that Complainant was eligible for a payout from the Fund, and also determined Complainant’s payout award.

In his attempts to remediate his pool project, Complainant enlisted the services of licensed contractors and unlicensed handymen. Specifically, Complainant issued the following payments: $3,200.00 to Dan’s Pool Remodeling for plaster resurfacing, $1,583.74 to Spring and Sons for electrical work, $939.39 and $487.62 to Checker Pool & Pump Supply for a pool pump and filter, and $1,525.00 to Just In Time Pool Repair for plumbing and parts installation.

However, the terms of the underlying pool remodeling contract only consisted of (i) new interior, including chip out and new plaster, (ii) pop elimination, (iii) new lighting, and (iv) the addition of 3 returns and a skimmer.

The Fund’s award to Complainant was calculated by disallowing payments for work that was not originally included in the underlying contract, payments issued to unlicensed handymen, and payments that could not be verified by the Registrar. An unpaid balance was also deducted from the compensable repair costs. In the end, the Fund calculated that Complainant was eligible for a $1,071.36 payout by law.

The Registrar did not, and does not, contact contractors or handymen that participate in an applicant’s remediation project to acquire additional data for consideration prior to determining an applicant’s potential payout amount from the Fund.

In closing, Complainant argued that he was unaware he had secured unlicensed assistance to remediate his project, and that he was forced to pay increased seasonal costs to ensure the project’s completion. Complainant opined that he was entitled to a $3,005.00 payout from the Fund because that amount would make him “whole.”

In closing, the Registrar argued that Complainant had been given allowances in his favor which granted him the ability to access the Fund, and that Complainant bore the responsibility of abiding by the principle of “caveat emptor” when entering into construction agreements. The Registrar opined that Complainant had been awarded the payout he was entitled to under all applicable legal parameters, no more and no less.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction and was properly brought before OAH for adjudication.

Complainant bears the burden of establishing by a preponderance of the evidence that the Fund’s payout amount was incorrect.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Pursuant to Ariz. Rev. Stat. § 32-1131 et seq., in order to be eligible to access the Recovery Fund an applicant must meet four eligibility criteria. First, an applicant must meet the definition of a “person injured” set forth at Ariz. Rev. Stat. § 32-1131(3) which requires that the applicant be the owner of the residential real property at issue. Second, the property must have had a classification of three under Ariz. Rev. Stat. § 42-12003. Third, the owner of the property must have occupied, or intended to occupy, the property as a resident that is damaged by a [residential or dual licensed] contractor who has paid for financial protection from the Recovery Fund. These criterion must be met at either the time the contract was executed or at the time the injury accrued. Fourth, as set forth in Ariz. Rev. Stat. § 32-1132(A), the applicant must have contracted with a residential contractor whose license was in good standing at the time of contract execution.

Ariz. Rev. Stat. § 32-1154(F) provides that “if a contractor’s license has been revoked or has been suspended as a result of an order to remedy a violation of this chapter the registrar may order payment from the residential contractors’ recovery fund to remedy the violation.”

In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.” “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

Based on the credible and available evidence of record, the Tribunal concludes that the Registrar soundly established Complainant’s eligibility and how Complainant’s payout award amount was properly calculated at $2,071.36 and then appropriately reduced to $1,071.36. The award is an accurate calculation of the payout Complainant is entitled to under all applicable laws.

Complainant failed to establish by a preponderance of the evidence that the Fund’s payout was improper or otherwise incorrect. Because Complainant has not sustained his burden of proof in this matter his appeal should be denied.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that the Registrar affirm the Notice of Claim for Administrative Payout dated February 06, 2020, and deny Complainant’s request to amend the payout amount from the Fund.

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 forty (40) days from the date of that certification.

Done this day, April 17, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors