FINACT2018A-3520-RFA-ROC-FinalAgencyAction-6693.pdf

2018A-3520-RFA-ROC · Registrar of Contractors · 2019-12-19

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Robert F Lundin, Case No. 2018-3520 COMPLAINANT, Docket No. 2018A-3520-RFA-ROC v. Sierra Deck Inc., FINAL ADMINISTRATIVE License No. ROC 147543, DECISION AND 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 on January 25, 2020. Dated December 16, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Arizona Registrar of Contractors

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 Copy mailed via USPS First Class mail December 16, 2019 to: Respondent Sierra Deck Inc 2825 E Gemini St Gilbert, AZ 85234 Complainant Robert F Lundin 2148 E Cairo Dr Tempe, AZ 85282 Copy sent electronically this same date to: Registrar’s Counsel Sabrina Khan, Assistant Attorney General Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2018-3520 / DE

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 RECEIVED 11.18.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert F Lundin, No. 2018A-3520-RFA-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Sierra Deck Inc., DECISION ROC License: ROC 147543, RESPONDENT HEARING: October 28, 2019 APPEARANCES: Complainant Robert F. Lundin appeared on his own behalf.

Arnold Perez, Owner and Qualifying Party, appeared on behalf of Respondent Sierra

Deck Inc. The Arizona Registrar of Contractors was represented by Assistant Attorney

General Sabrina Khan.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. The Arizona Registrar of Contractors (Registrar) issued License No. 147543 to Respondent. 2. On or about July 31, 2018, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor workmanship (the workmanship complaint). 3. As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158. 4. Respondent failed to submit a timely answer to the Citation. 5. On December 17, 2018, the Registrar issued a Final Administrative Decision and Order finding the violations alleged in the Citation, imposing a five day suspension, and imposing a $250.00 civil penalty. 6. On or about February 19, 2019, Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of repairing the

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.18.2019 ROC LEGAL

flagstone patio. As part of the claim process, Complainant submitted bids from three different contractors that Complainant had received to correct the project. 7. The Registrar issued a Notice of Claim for Administrative Payout, finding

that Complainant’s actual damages were $5418.72. Respondent requested a hearing,

believing the payout was too high. Complainant did not contest the amount of the

administrative payout. The Registrar referred the matter to the Office of Administrative

Hearings (OAH) for an evidentiary hearing.

8. Hearing was held on October 28, 2019.

HEARING EVIDENCE

9. The Directive from the Registrar specified that:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). . . . You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Color on deck and walkway is peeling off in multiple places, noteably on one place which contractor attempted to repair about eleven months ago. Color and sealer peeling off the pool deck, front walk area and, front entry area. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective work.

All errors in original. 10. Daniel Edwards, Legal Assistant for the Registrar, testified that he reviewed the Directive from the Registrar that had been issued, the discipline imposed by the Registrar, and the bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Edwards concluded that the lowest bid of $5528.64 to repair the flagstone was appropriate, but included a charge of $109.92 for 43 feet of caulking that was not part of the underlying contract. The Registrar reduced the submitted bid of $5528.64 by $109.92 to reach the proposed payout of $5418.72.

RECEIVED 11.18.2019 ROC LEGAL

11. Mr. Perez testified that the contractors Complainant contacted said they were unable to repair the issues, but he knew they could. Mr. Perez acknowledged that it was impossible to exactly match the color after fading, but asserted that the

contractors should have more experience to be able to not just replace the work when

they could repair it. Mr. Perez admitted he did not file an answer to the underlying

citation.

CONCLUSIONS OF LAW

1. 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. Arizona 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 Complainant bears the burden of proof to show

entitlement to any amount other than that in the Notice. 2. Complainant is eligible for an award from the Fund pursuant to A.R.S. § 32-1132(B)(1). 3. According to A.R.S. § 32-1132.01(B), an award from the Fund is limited to “actual damages suffered by the claimant as a direct result of a contractor’s violation . . .,” not to exceed the cost of repair or replacement. “Actual damages” are those that will put the injured party in the position in which he was before he was injured. United States Fidelity & Guaranty Co. v. Davis, 3 Ariz. App. 259, 263, 413 P.2d 590, 594 (1966). 4. 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. § 32-1132.01. 5. Respondent had an opportunity to correct the flagstone following the written directive from the Registrar and failed to do so. While Mr. Perez believed the corrective work could have been done for less than the submitted bids indicated, Mr. Perez did not present any evidence that any uninterested contractor was willing to perform the corrective work for less. RECEIVED 11.18.2019 ROC LEGAL

6. After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is accordingly entitled to a payout from the Fund in the amount of

$5418.72.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the

Registrar’s final order, Complainant receive a payout from the Residential Contractors’

Recovery Fund in the amount of $5418.72.

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, November 18, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors