ALJDEC decisions subject to certification as final

2019A-02495-RFA-ROC · Registrar of Contractors · 2020-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Justin Michael Loyd,

COMPLAINANT

Dreager Development Inc.,

DBA: Greenlight Solar Industries,

License No. ROC 161102,

RESPONDENT

No. 2019A-02495-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 7, 2020

APPEARANCES: Complainant Justin Michael Loyd appeared on his own behalf. The Arizona Registrar of Contractors was represented by Assistant Attorney General John R. Tellier. Respondent Dreager Development Inc. did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 161102 to Respondent Dreager Development Inc.

On or about May 13, 2019, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent’s work on the project was poor (the workmanship complaint).

As a result of the workmanship complaint, the Registrar issued a written directive in which Respondent was order to properly complete the doorway transition, supply and install stairs, replace new flat slab doors for matching raised panel doors, and replace the white framed windows matching the rest of the windows on the project.

After Respondent failed to perform the corrective work, 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 did not file a timely answer to the Citation. Accordingly, on July 31, 2019, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a five day suspension.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of repairing the work. As part of the claim process, Complainant submitted bids from three different contractors that Complainant had received to correct the project.

The Registrar issued a Notice and Order of Recovery Fund Claim Denial, finding that Complainant did not have any compensable actual damages. Complainant filed an appeal. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on July 7, 2020.

Shaquira Adebule, Legal Assistant with the Fund, testified that she reviewed contract, the payments Complainant made on the contract, and bids submitted by Complainant in calculating Complainant’s actual damages. Ms. Adebule concluded that the underlying contract price was $87,640.00, of which, Complainant had paid $79,036.00, which left an unpaid balance due on the contract of $8,604.00. The lowest bid for the repair work that was submitted by Complainant was $4,742.26. Ms. Adebule testified that because Complainant had a greater unpaid balance due on the contract than the cost to complete or repair the project, Complainant did not have any actual damages as defined by the statutes applicable to the Fund. Ms. Adebule stated that Complainant had paid other contractors to perform some of the work under the contract prior to filing the complaint. Because the work had been modified by others, the Registrar could not find a workmanship violation attributable to Respondent.

Complainant asserted that the $87,640.00 contract price was the wrong place to start because Complainant had overpaid for the work that had been performed to that point. Complainant argued that he was required to complete some of the work prior to the complaint because rain water was coming into his living room and it had flooded three times resulting in mold issues. Complainant also stated that because he had a swimming pool in his backyard, he was required by statute to enclose the pool. Complainant maintained that Respondent had only completed $60,000.00 worth of work at the point he had paid $79,036.00. Complainant indicated that the Registrar was requiring him to keep paying Respondent for work it was not performing to be eligible for a payout from the Fund. Complainant stated it would cost a minimum of $23.000.00 to complete the project.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B) 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.” Further, the actual damages “[m]ay not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines” and “[m]ust 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.” A.R.S. § 32-1132.01(B)(1) and (2).

Complainant bears the burden of proof to establish that the denial from the Fund is incorrect by a preponderance of the evidence. See A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B) (1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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.” Black’s Law Dictionary 1220 (8th ed. 1999).

Because Complainant had other contractors work on the project prior to filing a complaint, Respondent could not be held responsible for any possible workmanship issues with the work it performed. Because Respondent was not found to have committed a workmanship violation with respect to those matters, Complainant cannot recover from the Fund for the work done to correct those matters.

After review of all the evidence, the Tribunal concludes that the denial from the Fund accurately reflected Complainant’s lack of actual damages as defined by the statute. Accordingly, Complainant is not entitled to a payout from the Fund.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that Complainant’s appeal be dismissed.

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.

-54864001

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-137160-45720000Done this day, August 3, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000