ALJDEC decisions subject to certification as final

2019A-01515-RFA-ROC · Registrar of Contractors · 2021-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Isabel Jacki Manning,

COMPLAINANT

Green Canyon Landscaping Inc.,

License No. 321468,

RESPONDENT

No. 2019A-01515-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 8, 2021

APPEARANCES: Complainant Isabel Jacki Manning appeared on her own behalf. Respondent Green Canyon Landscaping Inc. was represented by Brian Pouderoyen. The Arizona Registrar of Contractors was represented by Assistant Attorney General Sarah A. Asta.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (Registrar) issued License No. 321468 to Respondent Green Canyon Landscaping Inc.

On or about March 27, 2019, the Registrar received a complaint against Respondent from Complainant Isabel Jacki Manning alleging Respondent’s work on the project was poor (the workmanship complaint).

Following a jobsite inspection, the investigator issued a written directive ordering Respondent to correct, among other things, the paver installation and the discolored finish in the swimming pool.

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 his November 11, 2019 Decision, Administrative Law Judge Randolph D. Wolfson considered Respondent’s arguments and concluded, among other things, that “[b]y a preponderance of the evidence, [Respondent] failed to perform all the paver installation work on this project in a professional and workmanlike manner and in accordance with applicable professional industry standards” in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and failed to correct the defective workmanship issues in violation of A.R.S. § 32-1154(A)(22).

On November 26, 2019, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a one day suspension.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of repairing the pavers and swimming pool. As part of the claim process, Complainant submitted two bids to completely remove the pavers and reinstall them and one bid to replaster the swimming pool.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $6540.00. Complainant requested a hearing, believing the payout was not high enough. 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 February 8, 2021.

Shaquira Adebule, Legal Assistant with the Registrar, testified that she reviewed the Directive from the Registrar that had been issued, Judge Wolfson’s decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Ms. Adebule stated that the bids submitted by Complainant relating to the paver were excessive in light of the work required by the directives. Because the bids involved completely removing the pavers and reinstalling them instead of adding sand as needed, the Registrar did not allow those bids as being accurate as to the work needed to correct or repair the project. The award from the fund was the amount of the singular bid submitted by Complainant to replaster the swimming pool to correct the issue identified by the investigator during the jobsite inspection and included in the written directive.

Complainant testified that the contractors she reached out to regarding correcting the pavers were unwilling to “repair” Respondent’s work and indicated they would have to remove and reinstall the pavers. Complainant did not provide any testimony or written statements from any licensed contractors explaining why the project could not be corrected by adding sand.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall 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.”

Complainant did not provide any evidence, other than her self-serving statements, that the pavers could not be corrected absent a complete removal an reinstallation. Accordingly, Complainant failed to sustain her burden that the award from the Fund was in error.

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 $6540.00.

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 $6540.00.

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, March 1, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000