ALJDEC decisions subject to certification as final

2019A-01014-RFA-LS-ROC · Registrar of Contractors · 2021-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Benjamin Henry Dragoo

COMPLAINANT

Kelvin Lumpkins

License No. 101059,

RESPONDENT

No. 2019A-01014-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 25, 2021

APPEARANCES: Complainant Benjamin Henry Dragoo appeared via Google Meet on his own behalf. Arizona Assistant Attorney General, Sarah A. Asta appeared via Google Meet representing the Registrar of Contractors. Gail Mathews appeared telephonically for the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 101059 to Respondent.

On or about March 1, 2019, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, that Respondent’s installation of a roof was poor.

On April 18, 2019, 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)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her July 29, 2019 Decision, Administrative Law Judge Antara Nath Rivera considered Respondent’s arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(3) and (22) because the Respondent’s work and materials fell below the Registrar’s standards and that Respondent failed to take corrective action.

On August 12, 2019, the Registrar issued a Final Administrative Decision and Order finding violations and revoked Respondent’s license and imposed a $500.00 civil penalty.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of fixing the roof. 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 was entitled to a payout of $2,490.00 from the Recovery Fund.

Complainant requested a hearing, believing the payout was too low. Respondent 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 January 25, 2021.

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 discipline of your license, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 16th, 2019.

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

1. Complaint Item 2: The head lap was short on the front faces of the home. 2. Complaint Item 3: Metal drip edge not installed properly, Bare wood exposed in valley, Drip edge does not match.

3. Complaint Item 4: Penetration flashings were not replaced as per contract.

4. Complaint Item 6: No bird block is installed at the lower edge of the tile as stipulated in the contract.

5. Complaint Item 7: Hot vent pipe termination for the hot water heater does not terminate 24"above height of ridge.

6. Complaint Item 9: Rake ridge tile on the edge of the shingled edge does not match the existing tile at all.

7. Complaint Item 10: Hot water tank vent damaged and must be replaced dry wall above was also damaged.

8. Complaint Item 13: Debris left in back yard.

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

Gail Mathews, Claims Reviewer for the Fund, testified that she reviewed the Directive from the Registrar that had been issued, Judge Rivera’s July 29, 2019 Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages.

Ms. Mathews testified that while there were two contacts between the parties, the second contract dated July 8, 2018 for $11,900.00 was the controlling contract.

In addition, Ms. Mathews testified that in Complainant’s Recovery Fund Claim form, Complainant was seeking to recover $11,900.00.

Ms. Mathews testified that the lowest bid of $12,690.00 for the correction of the roof issues was appropriate. In addition, Ms. Mathews testified that Complainant had received $4,250.00 from Respondent’s bond. Further, Ms. Mathews testified that Complainant had an unpaid balance of $5,950.00 on the contract.

Ms. Mathews testified that after the bond payout and unpaid balance were deducted from the lowest bid, $2,490.00 was the resulting amount that the Recovery Fund would pay out to Complainant.

In his testimony, Complainant stated that he believed that he should be compensated for the damages to his property and wanted to be made whole.

Respondent failed to appear for the hearing.

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.”

Complainant 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.”

While it is certainly understandable for Complainant to be frustrated given this whole ordeal, he has failed to meet his burden of proof that the payout was incorrect. In fact, with the Fund payout and the monies he received from the bond payout, Complainant would receive a total of $6,740.00. This is $790.00 more than what he paid under the contract.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages, and would provide Complainant with $790.00 more than when he contracted with Respondent. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $2,490.00.

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 $2,490.00.

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, February 1, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000