ALJDEC decisions subject to certification as final

2018A-3882-RFA-ROC · Registrar of Contractors · 2020-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Edward Andrew Serafin

COMPLAINANT

AZ Turf & More LLC

License No. 314645,

RESPONDENT

No. 2018A-3882-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 21, 2020

APPEARANCES: Complainant Edward Andrew Serafin appeared telephonically on his own behalf. Tracy Tingue, Owner and Operator, appeared telephonically on behalf of Respondent AZ Turf & More LLC. Arizona Assistant Attorney General, Sarah Asta appeared telephonically representing the Registrar of Contractors. Doug Ulmer appeared telephonically for the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 314645 to Respondent.

On or about August 20, 2018, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, that Respondent’s installation of a putting green was poor (the workmanship complaint) as it had dips and low spots, discolored areas, and imperfections in the turf.

As a result of the workmanship complaint, on October 31, 2018, 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)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her February 11, 2019 Decision, Administrative Law Judge Tammy L. Eigenheer considered Respondent’s arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(3) and (22) because the depression in the turf was Respondent’s responsibility and that Respondent failed to take corrective action.

On February 28, 2019, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a three day suspension and a $500.00 civil penalty.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of fixing the putting green. As part of the claim process, Complainant submitted bids from two different contractors that Complainant had received to correct the project.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $5,370.25. 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.

Hearing was held on August 21, 2020.

Hearing Evidence

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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S.§ 32-1154(E) of up to $500.00 Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue disciple of your license. You must provide the Registrar with satisfactory written proof of your compliance with the Directive prior to 5:00 p.m. on 10-15-2018

You are hereby directed to remedy the following violations by the appropriate means:

Complaint item #1: Correct locations of sinking soil under the installed turf.

. . .

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective work.

Doug Ulmer, Claims Reviewer for the Fund, testified that he reviewed the Directive from the Registrar that had been issued, Judge Eigenheer’s February 11, 2019, Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Ulmer concluded that the lowest bid of $5,620.25 for the correction of the soil issues was appropriate. Mr. Ulmer then reduced this amount by $250.00 as that amount was unpaid from the original contract.

In his testimony, Mr. Ulmer stated that generally the Registrar will default to the lowest bid presented, however, he has discretion to modify that bid if necessary.

Upon cross-examination, Mr. Ulmer admitted that the bid he used included solar screens and installation of the same, were not part of the original job and those amounts ($479.00) should likely be removed from the final payout.

Respondent vehemently denied that the entire project needed to be replaced as the directive did not call for replacement. He further testified that the actual cost should be around $1,000.00 based upon his experience.

Respondent was adamant the dips in the soil were naturally occurring and he has to routinely repair the same. Respondent was also concerned with what happened to the materials he originally installed on the project.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides that “[a]n 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.”

Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.

“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.”

Respondent had an opportunity to correct the putting green due to the unevenness in the soil following the written directive from the Registrar and failed to do so.

Respondent also failed to present any evidence as to how he determined the cost to be around $1,000.00.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages, but for the cost of the solar screens and installation of the same. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $4,891.25.

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 $4,891.25.

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.

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-137160-45720000Done this day, August 27, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000