FINACT2019A-00235-RFA-ROC.pdf

2019A-00235-RFA-ROC · Registrar of Contractors · 2020-01-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

John P Apodaca, Case No. 2019-00235 COMPLAINANT, Docket No. 2019A-00235-RFA-ROC v. Nyce Concrete Construction Inc., FINAL ADMINISTRATIVE License No. ROC 319471, 170713, 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 February 12, 2020. FINAL NOTES On page 1, line 25 replace “Payout” with “Award”. On page 1, line 26 replace “32- 1133(A)” with “32-1133.01(A). On page 2, line 11 replace “25799” with “15799”. On page 4, line 1 replace “Effective” with “Efficient”.

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 Dated January 3, 2020. By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail January 3, 2020 to: Respondent Nyce Concrete Construction Inc 1411 N 3rd St Phoenix, AZ 85004-1612 Complainant John P Apodaca 17599 W Wind Song Ave Goodyear, AZ 85338 Copy sent electronically this same date to: Registrar’s Counsel John Tellier, Assistant Attorney General Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-00235/tw

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 12.18.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John P. Apodaca, No. 2019A-00235-RFA-ROC

ADMINISTRATIVE LAW JUDGE COMPLAINANT, DECISION v.

Nyce Concrete Construction Inc., License Nos. ROC 319471 and ROC 170713,

RESPONDENT.

HEARING: December 9, 2019, at 9:00 a.m. APPEARANCES: John P. Apodaca (“Complainant”) appeared on his own behalf; Nyce Concrete Construction Inc. (“Respondent”) appeared through Troy Standley, its officer/qualifying party; the Arizona Registrar of Contractors (“the

Registrar”) was represented by John Tellier, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. According to the Registrar’s public website, on December 18, 2001, the

Registrar issued License No. ROC 170713 for Specialty Commercial C-9 Concrete

contracting to Respondent. On May 15, 2018, the Registrar issued License No. ROC 319471 for Specialty Residential R-9 Concrete. 2. On October 10, 2019, the Registrar issued a Notice of Claim for Administrative Payout, notifying the parties that “Complainant filed a claim for payment with the Residential Contractors’ Recovery Fund [(“the Fund”)] pursuant to A.R.S. § 32-1133(A). After a review of the claim and all supporting documentation, the Fund determined that Complainant is to be awarded $2,828.57, in the form of a payment issued by the Fund.”1

The Registrar’s Exhibit 15.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12.18.2019 ROC LEGAL

3. After Respondent requested a hearing on the amount of the payout, the Registrar referred Complainant’s claim to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 4. A hearing was held on December 9, 2019. The Registrar presented the testimony of Flora Hayden, the Legal Assistant in the Registrar’s Legal Department/Fund who had analyzed Complainant’s claim, and submitted fifteen exhibits. Respondent’s officer/qualifying party, Troy Standley, testified on its behalf. Complainant testified on his own behalf. THE UNDERLYING WORKMANSHIP COMPLAINT 5. On or about January 14, 2019, Complainant filed a complaint against Respondent with the Registrar alleging poor work in connection with its contract to install concrete sidewalks and patios at Complainant’s house at 27599 W. Wind Song Ave., Goodyear, Arizona 85338 (“the project”). According to the complaint, Complainant had paid the full $2,375.00 contract amount to Respondent.2 6. The complaint was assigned to Investigator Stephen Lawton. Investigator Lawton performed a jobsite inspection on February 15, 2019, which Respondent did not attend.3 7. On March 15, 2019, Investigator Lawton on behalf of the Registrar issued a directive that required Respondent to correct certain deficiencies in Respondent’s work on or before April 5, 2019, at 5:00 p.m., including the shoddy work where the concrete was cracked and chipped, the troweling on the edges of the patio and sidewalk areas, two areas where the concrete was only 1-1/2” thick, the sidewalk leading from the pack door that had a 1” lip and constituted a tripping hazard, and the concrete slurry on the A/C unit, the fence gate, and side garage door.4 8. After Respondent did not perform any repairs, the Registrar issued a Citation that charged Respondent with having committed acts that furnished cause to suspend or revoke its contractor’s license under A.R.S. § 32-1154(A)(3), (12), and (22). After Respondent failed to file a timely written answer to the Citation, on May 23, 2019, the

2 See the Registrar’s Exhibit 1. See the Registrar’s Exhibit 2 (jobsite inspection notes). See the Registrar’s Exhibit 3. RECEIVED 12.18.2019 ROC LEGAL

Registrar issued a Final Administrative Decision and Order, finding that under A.R.S. § 32-1155(A) and (B), Respondent was deemed to have admitted the charged violations of A.R.S. § 32-1154(A). As a result, the Registrar suspended Respondent’s contractor’s licenses for a period of two days and required Respondent to pay a $250.00 civil penalty under A.R.S. § 32-1154(E).5 Respondent did not appeal the Registrar’s Final Administrative Decision and Order. COMPLAINANT’S CLAIM TO THE FUND 9. On or about August 1, 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 $13,000.00.6 10. Complainant submitted documentation that he had recovered $4,250.00 from Respondent’s bond.7 11. Complainant submitted checks that showed he had paid the full contract amount to Respondent.8 12. Complainant submitted bids from appropriately licensed contractors for repair work, in relevant part as follows: 12.1 Hardscapes Production, Inc.’s bid to demo existing concrete and to add 3000 psi concrete in the total amount of $6,300.00;9 12.2 Replace with Logo’s bid to remove and replace existing patio and sidewalk slabs in the total amount of $7,550.00;10 12.3 Art Enriquez Concrete LLC’s bid to remove existing concrete and to set and pour 3000 psi concrete pads and sidewalks in the total amount of $5,578.57;11 12.4 Unlimited Curbing LLC’s bid for sod repair and mulch in the total amount of $800.00;12

See the Registrar’s Exhibit 4. 6 See the Registrar’s Exhibit 5. See the Registrar’s Exhibit 6. 8 See the Registrar’s Exhibit 7. See the Registrar’s Exhibit 8. 10 See the Registrar’s Exhibit 9. See the Registrar’s Exhibit 10. See the Registrar’s Exhibit 11. RECEIVED 12.18.2019 ROC LEGAL

12.5 Effective Air Conditioning and Heating’s bid to replace the air conditioner’s coils in the total amount of $3,300.00;13 and 12.6 George Keith Painting and Roofing’s bid to repaint the stem wall and foundation to match the home in the total amount of $1,500.00.14 13. Ms. Hayden testified that, after the Registrar has determined that a contractor has violated A.R.S. § 32-1154(A) by performing poor work on a construction project, the homeowner may recover up to $30,000.00 from the Fund to repair of complete the contractor’s work. To avoid a windfall, amounts that a homeowner owes on the contract or has recovered from other sources must be deducted from the amount of the payout. 14. Mr. Standley attempted to raise the issue of Respondent’s responsibility for the repairs on the directive in the underlying workmanship complaint. He acknowledged that Respondent had not appealed the Registrar’s final order in the workmanship complaint. 15. Ms. Hayden testified that she reviewed the file of the underlying workmanship complaint, especially the complaint, the assigned investigator’s jobsite inspection notes, and the directive, to determine which items were compensable. She did not include Unlimited Curbing LLC’s bid for sod repair and mulch or Effective Air Conditioning and Heating’s bid to replace the air conditioner’s coils because these items were not included in the complaint, the investigator’s notes, or the directive. 16. Complainant testified that Respondent had damaged his yard and air conditioner. He acknowledged that he did not include these items in his complaint. 17. Ms. Hayden testified that she consulted Investigator Lawton and that he confirmed that Respondent had left concrete slurry on the stem wall and foundation. Therefore, George Keith Painting and Roofing’s bid to repaint these items was included in the calculation of the payout to Complainant. 18. Investigator Lawton testified that he saw a concrete splash on Complainant’s air conditioner but that Complainant did not complain that the splash

See the Registrar’s Exhibit 12. See the Registrar’s Exhibit 13. RECEIVED 12.18.2019 ROC LEGAL

affected the air conditioner’s operation. Investigator Lawton testified that he did not see any damage to the air conditioning unit. 19. Investigator Lawton testified that he also did not see any problem with the sod at Complainant’s house. 20. Investigator Lawton testified that it frequently costs twice as much to remove and redo a contractor’s work as it did for the contractor to originally perform the scope of work. 21. Ms. Hayden testified that she took Art Enriquez Concrete LLC’s low bid to remove existing concrete and to set and pour 3000 psi concrete pads and sidewalks in the total amount of $5,578.57, plus George Keith Painting and Roofing’s bid of $1,500.00 to repaint the stem wall and foundation, less the $4,250.00 that Complainant had recovered from Respondent’s bond, to calculate the $2,828.57 payout from the Fund.15 CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.16 2. When the Registrar has calculated the amount of a Complainant’s compensable damages and proposed a payout from the Fund, the calculation is a prima facie showing of the amount that the Complainant is entitled to recover as a payout from the Fund. The burden shifts to the party who requested a hearing on the amount of the payout to establish that the Registrar’s calculations were erroneous or not supported by a preponderance of the evidence.17 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”18 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

15 See the Registrar’s Exhibit 14. See 32-1101 et seq. 17 See A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). RECEIVED 12.18.2019 ROC LEGAL

doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”19 4. 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 on the complaint that Complainant filed with the Registrar establishes that Respondent’s work violated the sections of A.R.S. § 32-1154(A) that were charged in the Citation. 5. 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.20

6. Respondent did not appeal the Registrar’s final order in the underlying workmanship complaint that made Respondent responsible for the workmanship deficiencies described in the directive. Complainant did not include any complaints about the air conditioner’s operation or sod in the complaint he filed with the Registrar. Investigator Lawton also did not find any problem with these items of construction. The Registrar’s calculation of the Fund payout amount of $2,828.57 is supported by the evidence and the Registrar’s statutes. ////

BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). See Ramsey v. Arizona Registrar of Contractors, 241 Ariz. 102, 106, 384 P.3d 316, 320 (App. 2016). RECEIVED 12.18.2019 ROC LEGAL

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 $2,828.57 to Complainant John P. Apodaca. IT IS FURTHER ORDERED that under A.R.S. § 32-1139(B), the Registrar shall charge $2,828.57, plus interest at a rate of ten percent a year, to Respondent Nyce Concrete Construction Inc.’s License Nos. ROC 170713 and ROC 319471. 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. Done this day, December 17, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors