ALJDEC decisions subject to certification as final

2019A-02517-RFA-LS-ROC · Registrar of Contractors · 2022-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Muriel Gitlin,

COMPLAINANT

Rigid Masonry Inc

License No. ROC 269438,

RESPONDENT

No. 2019A-02517-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 31, 2022

APPEARANCES: Travis Zinner, appeared telephonically on behalf of Respondent KLB Home Crafters LLC. Arizona Assistant Attorney General, Sarah Asta appeared telephonically representing the Registrar of Contractors. Eric Ulinger appeared telephonically for the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 269438 to Respondent on November 18, 2010.

On or about December 4, 2018, Jennifer Gitlin (Complainant) entered into a contract with Rigid Masonry Inc. (Respondent), for the construction of a block fence located at 6398 E Redbird Lane San Tan Valley, Arizona 85140. The final contracted price to perform the work was $22,050.00 and was paid in full.

On or about May 14, 2019, Complainant filed a complaint with the Registrar alleging that Respondent performed poor work. The agency assigned investigator Paul Smith to conduct a jobsite inspection and, on July 1, 2019, a directive was issued requiring Respondent to make specific repairs. Respondent failed to fully comply with the directive and, on October 4, 2019, a citation was issued to Respondent. Respondent filed an answered the citation and a hearing was held on December 20, 2019.

The Administrative Law Judge found that the Respondent’s work failed to meet workmanship standards because the block wall was loose and had broken blocks, had areas that were not properly grouted, and the wall had areas that were not level and was leaning. On March 17, 2020, Respondent’s license was suspended as a direct result of this complaint.

On or about September 1, 2021, Complainant filed a claim with the Recovery Fund. In review of the claim, Complainant provided two bids from properly licensed contractors to repair portions of the block fence. One was a bid from 3-D Masonry, license number 250270, in the amount of $2,380.00, and one from Quality Custom Roofing, license number 331350, in the amount of $3,500.00.

On or about November 4, 2021, the Registrar issued a Notice of Claim for Administrative Award in the amount of $2,380.00.

On or about November 18, 2021, Respondent requested a hearing.

On January 31, 2022, a hearing was held via Google Meet before the Office of Administrative Hearings, an independent State agency.

The Registrar offered the testimony of Eric Ulinger and submitted 15 exhibits into evidence. Travis Zinner testified on behalf of Respondent and submitted 1 exhibit into evidence.

Eric Ulinger, Claims Reviewer for the Fund, testified that he reviewed the Directive from the Registrar that had been issued, Judge Shedden’s Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Ulinger concluded that the lowest bid of $2,380.00 for the correction of the issues was appropriate.

Mr. Ulinger testified that while there had been a significant wind storm in the area shortly after the work was performed, Mr. Ulinger believed that if were not for the faulty workmanship on the project, the block wall would have not been damaged.

Mr. Ulinger testified further that he requested that a new Investigator examine the wall as the previous inspector who issued the original Citation was no longer with the Registrar.

Mr. Zinner testified on behalf of Respondent. He testified that he finished the project in late March 2019, and he believed that the Complainant was happy with the work performed. After a dispute regarding the final payment, Respondent placed a lien on the property. Ultimately, Complainant paid the remaining balance as well as the cost of the lien ($250.00).

Mr. Zinner next testified that Respondent made three separate trips during the Directive time period to correct the work, however some issues remained. Mr. Zinner testified that he served his suspension and paid the fine.

Mr. Zinner testified that even if his work had been perfect, the severe wind storm would have still caused the damage to the wall.

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.”

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.”

Respondent had an opportunity to correct and/or finish the work following the written directive from the Registrar and failed to do so.

Respondent also failed to present any evidence as to how he determined that the bid used was not an appropriate amount. Further, any disputes as to the workmanship issues versus storm damage would have and should have been determined in Judge Shedden’s decision. Judge Shedden found workmanship issues and this ALJ will not disturb that decision.

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 entitled to a payout from the Fund in the amount of $2,380.00.

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 $2,380.00.

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 30 days from the date of that certification.

-54864001

001

-137160-45720000Done this day, February 14, 2022

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000