ALJDEC decisions subject to certification as final
2019A-01651-RFA-ROC · Registrar of Contractors · 2020-07-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
James Kimmel Jr and Tammy Kimmel,
COMPLAINANT,
v.
K & A Best Fabrication LLC
License No. ROC 294532,
RESPONDENT.
No. 2019A-01651-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 24, 2020 with the record held open until July 15, 2020. APPEARANCES: Assistant Attorney General Sarah A. Asta appeared on behalf of the Arizona Registrar of Contractors. Kevin Liszewski appeared on behalf of Respondent K & A Best Fabrication, LLC. James Kimmel, Jr. appeared on behalf of himself. Tammy Kimmel appeared on behalf of herself.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about April 3, 2019, Complainant James Kimmel, Jr. and Tammy Kimmel (Kimmels) filed a complaint against Respondent K & A Best Fabrication, LLC
(K & A) alleging poor workmanship in connection with a steel building erection.
2. The Arizona Registrar of Contractors (Registrar) conducted an investigation into the complaint.
3. On June 20, 2019, the Registrar issued a Directive to Respondent that provided, in relevant part, as follows:
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 July 8, 2019.
You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 1: “Screws drilled into the side panels missed the supporting structure down both sides of the building.”
Investigator’s Observation: Verified that screws missed side panel metal structure. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 2: “Roof panels installed on one side are not aligned with other side.”
Investigator’s Observation: Verified that roof panels on one side of the roof do not align with the metal panels on the other side of the roof, causing gaps where panels over-lap and/or damage where panels appear to have been forced together. Allegation is substantial.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 3: “Roof cap cannot be installed correctly due to the misaligned roof panels.”
Investigator’s Observation: Verified that the roof cap is missing at approximately 25% of the structure and existing roof cap is damaged where it appears to have been forced to align with the roof panels on each side. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 6: “Many un-repaired miss-drilled holes throughout the structure.”
Investigator’s Observation: Verified many “holes” throughout the roof and side wall metal panels of the structure. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 7: “Panels bowed out in placed due to misalignment.”
Investigator’s Observation: Verified panels scattered throughout the structure are “bowed” and/or damaged. Allegation is substantiated.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
4. The Registrar issued a Citation against K & A’s license for alleged violations of (Arizona Revised Statutes) A.R.S. § 32-1154 (A)(1), (A)(3), (A)(12) and (A)(22).
5. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
6. A hearing was held on June 24, 2020.
7. On October 28, 2019, Administrative Law Judge Eigenheer issued a Recommended Decision that included findings that K & A violated A.R.S. § 32-1154 (A)(1), (A)(3), (A)(12) and (A)(22) as alleged.
8. On November 8, 2019, the Registrar issued a Final Administrative Decision and Order adopting the Recommended Decision.
9. On or about March 1, 2020, the Kimmels requested a payout from the Registrar’s Recovery Fund. The amount left owing on the Kimmels’ contract with K & A was $1,000.
10. The Kimmels received a bond payment for K & A’s poor work in the amount of $4,250.
11. The Kimmels submitted bids to the Registrar from other contractors for the corrective work. The lowest bid was from Black Iron Steel in the amount of $13,958. See Exhibit 16.
12. Recovery Fund Claims Reviewer Tedi White compared the Black Iron Steel bid to the Directive and determined that the bid was not out of scope.
13. Mr. White subtracted the amount of the bond payment and the amount left owing on the contract from the Black Iron Steel bid. The Registrar determined that the Kimmels were eligible to a payout from the Fund in the amount of $8,708.
14. On May 1, 2020, the Registrar issued a Notice of Claim for Administrative Award that provided, “... the Fund determined that Complainants are to be awarded $8,708.00 in the form of a payment issued by the Fund.”
15. K & A requested a hearing regarding the award.
16. The mater was referred to the Office of Administrative Hearings for an evidentiary hearing.
17. On May 22, 2020, the Registrar issued a Notice of Hearing setting the
matter for hearing on June 24, 2020, at the Office of Administrative Hearings in Phoenix, Arizona.
18. The notice shows that the hearing was set to determine “the Registrar’s determination regarding James Kimmel Jr. and Tammy Kimmel’s Recovery Fund Claim. The Registrar’s determination was made pursuant to A.R.S. §§ 32-1132 to 32-1133.01.”
19. A hearing was held on June 24, 2020.
20. At hearing, the Department presented the testimony of Mr. White.
Kevin Liszewski testified on behalf of K & A. Ms. Kimmel testified on behalf of herself.
21. At hearing, Mr. Liszewski contended that the amount awarded to the Kimmels through the bond company was enough to cover the corrective work.
Mr. Liszewski contended that the award of $8,708 was excessive.
22. Mr. White provided testimony regarding the review of the Kimmels’ claim and the calculation of the recovery fund award.
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.”
After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainant’s actual damages.
The award appears to properly remedy the workmanship violations for which Respondent was responsible. Respondent failed to establish by a preponderance of the evidence that the values provided on the bid utilized by the Registrar were excessive.
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 $8,708.
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, July 31, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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