ALJDEC decisions subject to certification as final

2018A-904-RFA-LS-ROC · Registrar of Contractors · 2021-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lee Ann Clemmer Russell,

COMPLAINANT

GGCS LLC,

DBA: Pinal Co Re-Bath,

License No. ROC 311068,

RESPONDENT

No. 2018A-904-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 25, 2021

APPEARANCES: Complainant Lee Ann Clemmer Russell appeared on her own behalf. Chris Deck appeared on behalf of Respondent GGCS LLC, doing business as Pinal Co Re-Bath. The Arizona Registrar of Contractors was represented by Assistant Attorney General Michael Raine.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (Registrar) issued License No. 311068 to Respondent.

On or about February 26, 2018, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work by Respondent.

The Registrar investigated the complaint and substantiated poor work done by Respondent on the project.

On or about April 25, 2018, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On or about August 3, 2018, the matter proceeded to an administrative hearing.

In his August 16, 2018 Decision, Administrative Law Judge Randolph D. Wolfson considered Respondent’s arguments and concluded that Complainant established the alleged violations. Administrative Law Judge Wolfson recommended that the Registrar revoke Respondent’s license.

On or about August 30, 2018, the Registrar issued a Final Administrative Decision and Order (Decision) accepting the Administrative Law Judge Decision. The Decision provided that it became effective on October 9, 2018.

No appeals were taken from the Decision.

On or about October 10, 2018, the Registrar revoked Respondent’s license.

On or about December 18, 2020, Complainant filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of correcting the work.

Douglas Ulmer, Legal Assistant II, reviewed Complainant’s claim and concluded that Complainant was not eligible for an award from the Fund because Complainant filed her claim more than two years after the effective date of the Final Administrative Decision and Order.

Mr. Ulmer testified that, pursuant to Arizona statute, individuals have two years from the date of accrual to file a claim with the Fund. Mr. Ulmer indicated the date of accrual would be the date that the decision imposing discipline was effective. In this matter, the date of accrual was October 9, 2018, therefore, the statute of limitations required the claim to the Fund be filed by October 9, 2020. Mr. Ulmer stated that but for the statute of limitations issue, Complainant would have been eligible to access the Fund.

Complainant acknowledged that the claim was filed in December 2020. Complainant stated that because of COVID-19 issues, she was unable to find contractors to visit the jobsite and provide her with estimates for the work to be performed. Complainant cited both her health issues and the unwillingness or unavailability of contractors to provide her with estimates.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof, by a preponderance of the evidence, to establish that the denial of a payout from the Fund 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.”

A.R.S. § 32-1133.01(G) provides that “[a] claim for payment from the residential contractor's recovery fund must be submitted within two years after all proceedings, reviews and appeals connected with the registrar's final order terminate.”

The evidence was uncontroverted that the Decision was effective on October 9, 2018, and Complainant did not file her claim with the Fund until December 18, 2020, more than two years later.

While COVID-19 issues undoubtedly complicated Complainant’s ability to obtain bids from March 2020, through December 2020, that does not constitute an exception to the statute of limitations.

After review of all the evidence, the Tribunal concludes that the denial of Complainant’s claim to the Fund was appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant’s appeal be denied.

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, April 14, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000