ALJDEC decisions subject to certification as final

2018A-3520-RFA-ROC · Registrar of Contractors · 2019-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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. 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 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. Complainant is eligible for an award from the Fund pursuant to A.R.S. § 32- 1132(B)(1). 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). 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. 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. 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 -----------------------

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