ALJDEC decisions subject to certification as final

2018A-329-RFA-ROC-RES · Registrar of Contractors · 2020-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Monica Ann Del Re,

COMPLAINANT

North Forty Enterprises, Inc.,

DBA: A C Zone,

License No. ROC 182531,

RESPONDENT

No. 2018A-329-RFA-ROC-RES

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 26, 2020

APPEARANCES: Everett Butler, Esq. represented Complainant Monica del Rey who was present. Assistant Attorney General Sarah Asta represented the Arizona Registrar of Contractors. Daniel Edwards, a witness for the Arizona Registrar of Contractors was also present. Respondent North Forty Enterprises, Inc., doing business as A C Zone, did not appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Background

According to the Arizona Registrar of Contractor’s (“Registrar”) public website, on February 9, 2003, the Registrar issued License No. ROC 182531 for Specialty Residential Air Conditioning and Refrigeration R-39R contracting to Respondent North Forty Enterprises, Inc., doing business as A C Zone (“Respondent”).

The Registrar issued a Notice of Claim for Administrative Payout, notifying the parties of an intended payout to Complainant Monica Ann Del Re (“Complainant”) from the Residential Contractors’ Recovery Fund (“the Fund”). Respondent requested a hearing on the amount of the payout.

The Registrar referred Complainant’s claim to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

Background: The Underlying Workmanship Complaint

On or about January 24, 2018, Complainant filed a Complaint against Respondent with the Registrar alleging poor work in connection with its performance of the remodeling of Complainant’s home (“the project”).

The Complaint was assigned to Investigator Steve Philpott. Investigator Philpott performed a jobsite inspection and issued a Written Directive that required Respondent to correct certain deficiencies in Respondent’s work on or before a specified date.

Respondent failed to comply with the Written Directive, and on March 13, 2018, the Registrar issued a Citation that charged Respondent with violations of A.R.S. §§ 32-1154(A)(2), (A)(3), namely, A.A.C. R4-9-108, (A)(9), (A)(12), (A)(16), (A)(22), as well as A.R.S. § 32-1158.

Respondent filed a written answer to the Citation and the Registrar thereafter referred Complainant’s workmanship Complaint to OAH for an evidentiary hearing.

On November 29, 2018, the Administrative Law Judge (“ALJ”) assigned to the case issued a Decision recommending that the Citation and Complaint be dismissed for lack of jurisdiction.

On December 31, 2018, the Registrar issued a Final Administrative Decision and Order, rejecting the ALJ’s Decision and remanding the matter to OAH to determine if Respondent violated the statutes as charged in the Citation.

A rehearing was held on April 19, 2019. Following the rehearing, the ALJ issued a Decision concluding that Respondent had violated all of the charged statutory provisions and recommending that Respondent’s License Number 182531 be revoked.

On May 22, 2019, the Registrar issued a Final Administrative Decision and Order accepting the ALJ’s Decision.

On or about August 29, 2019, Complainant submitted a claim to the Fund to recover the damages that were allegedly caused by Respondent’s poor work on the project, requesting a payout in the amount of $30,000.00.

The Registrar reviewed Complainant’s claim and all supporting documentation, and determined that Complainant should be awarded $30,000.00 from the Fund. On May 26, 2020, the Registrar issued a Notice of Claim for Administrative Award in the amount of $30,000.00.

Respondent requested a hearing regarding the proposed award from the Fund.

On July 27, 2020, the Registrar issued to the parties a Notice of Hearing on Contested Case charging Respondent with violations of A.R.S. §§ 32-1154 (A)(2), (A)(3), namely, A.A.C. R4-9-108, (A)(9), (A)(12), (A)(16), (A)(22), and 32-1158(A). That Notice of Hearing was mailed to Respondent’s address of record with the Registrar and also sent electronically to Respondent’s email address of record with the Registrar, as well as to Respondent’s attorney of record at that time, Fidelis Garcia, via mail and email. The Notice of Hearing advised that a hearing would convene on August 26, 2020, at 9:00 a.m. at the Office of Administrative Hearings and provided the physical address for the Office of Administrative Hearings.

However, on August 19, 2020, the Registrar issued to the parties an Amended Notice of Hearing on Appealable Agency Action setting forth the issue to be addressed at hearing as: “Respondent has contested the Registrar’s determination regarding Monica Ann Del Re’s Recovery Fund Claim. The Registrar’s determination was made pursuant to A.R.S. §§ 32-1132 to 32-1133.01.” That Notice of Hearing was mailed to Respondent’s address of record with the Registrar and also sent electronically to Respondent’s email address of record with the Registrar, as well as to Respondent’s attorney of record at that time, Mr. Garcia, via mail and email. The Notice of Hearing advised that a hearing would convene on August 26, 2020, at 9:00 a.m. at the Office of Administrative Hearings and provided the physical address for the Office of Administrative Hearings.

On August 17, 2020, an Order Setting Hearing by Video Conference or Telephone was issued by Administrative Law Judge Thomas Shedden, advising the parties that the hearing would convene via Google Meet or telephonically. The Order provided the Google Meet link. That Order was sent to Mr. Garcia, Respondent’s attorney of record at that time.

On August 25, 2020, the day before the scheduled hearing, the Registrar filed a Motion to Continue the hearing. The Motion indicated that the Registrar’s counsel, Assistant Attorney General Sarah Asta, spoke with Respondent’s representative after confirming that Mr. Garcia was no longer representing Respondent, and Respondent’s representative informed Ms. Asta that he was not aware of a Recovery Fund hearing set for the following day and also stated that he “never requested a Recovery Fund hearing.”

At the time set for hearing, Complainant appeared with her counsel, Everett Butler. Ms. Asta was present on behalf of the Registrar. Daniel Edwards appeared as a witness for the Registrar. Respondent did not appear for the hearing, in person, by phone, or by video conference.

Mr. Butler indicated that he had sent to Respondent Complainant’s Disclosure Statement via FedEx and email.

The Administrative Law Judge found that Respondent had notice of the scheduled hearing and failed to appear. The Motion to Continue was denied.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(A) provides that “[t]he residential contractors' recovery fund is established, to be administered by the registrar, for the benefit of a claimant damaged by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter.” The Registrar’s final decision in the underlying workmanship case giving rise to the instant matter establishes that Respondent’s work violated the sections of A.R.S. § 32-1154(A) that were charged in the Citation.

For the purposes of an award under A.R.S. § 32-1132(A), A.R.S. § 32-1133.01(B) provides as follows:

An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:

1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

2. Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

When the Registrar has calculated the amount of a Complainant’s compensable damages and proposed a payout from the Fund to which she is entitled, the calculation is a prima facie showing of the amount that Complainant is entitled to recover as a payout from the Fund. The burden shifts to the party challenging the amount of the payout to establish that the Registrar’s calculations were erroneous or not supported by a preponderance of the evidence. In this case, Respondent requested a hearing challenging the Recovery Fund payout. Therefore, the burden was on Respondent to establish by a preponderance of the evidence that Complainant was not entitled to a payout or that the amount of the proposed payout was erroneous or inappropriate.

“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.”

Because Respondent failed to appear, Respondent did not establish that the proposed payout from the Fund is improper. Consequently, Respondent’s appeal should be dismissed.

RECOMMENDED ORDER

In view of the foregoing, IT IS ORDERED that on the effective date of the final Order in this matter, the Residential Contractors’ Recovery Fund shall pay $30,000.00 to Complainant Monica Ann Del Re.

IT IS FURTHER ORDERED that under A.R.S. § 32-1139(B), the Registrar shall charge $30,000.00, plus interest at a rate of ten percent a year, to Respondent North Forty Enterprises, Inc., doing business as A C Zone’s License No. ROC 182531.

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 five days from the date of that certification.

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-137160-45720000Done this day, September 14, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000