ALJDEC decisions subject to certification as final

2019A-03022-RFA-ROC · Registrar of Contractors · 2020-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Caroline F. Wren,

COMPLAINANT

Blue Mountain Renovations LLC,

License No. ROC 301336,

RESPONDENT.

No. 2019A-03022-RFA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 16 and August 5, 2020

APPEARANCES: John Tellier, Esq. for the Registrar of Contractors; Caroline F. Wren appeared on her own behalf on August 5, 2020, but no one appeared for Complainant on June 16th; Michael Espinoza appeared for Respondent on June 16, 2020, but no one appeared for Respondent on August 5th

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On May 15, 2020 the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Appealable Agency Action setting the above captioned matter for hearing at the Office of Administrative Hearings at 9:00 a.m. on June 16, 2020.

On June 16, 2020, no representative for complainant Caroline F. Wren appeared at the scheduled time and the matter was convened in her absence at about 9:15 a.m.

After the matter was convened, ROC and Respondent Blue Mountain Renovations LLC agreed that the matter should be continued for what was docketed as a further hearing.

The further hearing was scheduled to convene at 9:00 a.m. August 5, 2020. No representative for Respondent appeared at the scheduled time and the matter was convened in its absence at about 9:15 a.m.

The issue is whether an award and payout from the residential contractors’ recovery fund is justified by the evidence.

Respondent holds license number 301336 issued by ROC.

In September 2017, Ms. Wren hired Respondent to perform work including constructing a slump block wall and paver path at her house in Tucson.

Ms. Wren filed with ROC a complaint against Respondent alleging poor workmanship.

On July 15, 2019, ROC issued a Directive ordering Respondent to remedy by the appropriate means the block wall (complaint item 2) and paver path (complaint item 6).

On August 9, 2019, ROC issued to Respondent a Citation alleging that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Though a Final Administrative Decision and Order (Default) dated September 4, 2019, ROC a found that Respondent had violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). Based on these proven violations ROC suspended Respondent’s license for three days and assessed against it a civil penalty of $250.

On November 8, 2019, Ms. Wren submitted to ROC a Recovery Fund Claim that included bids from licensed contractors to perform corrective work.

Ms. Wren’s Recovery Fund Claim shows that the lowest bid to complete the work was $27,650.

ROC’s Shaquira Adebule evaluated Ms. Wren’s Recovery Fund Claim.

Ms. Adebule provided credible testimony that Ms. Wren met the eligibility requirements for a payout from the fund.

Ms. Adebule found that the low bid of $27,650 prepared by All About Masonry LLC and submitted to ROC by Ms. Wren aligned with the work that ROC through its Directive ordered Respondent to complete.

In evaluating the bids Ms. Wren provided, Ms. Adebule also exchanged emails with ROC’s Gregory Johndrow, the investigator who had inspected Ms. Wren’s property while the workmanship complaint was pending.

Mr. Johndrow found that All About Masonry LLC’s scope of work was in line with the corrective measures necessary to remedy the deficient work.

On November 25, 2019, ROC issued a Notice of Claim for Administrative Payout showing that Ms. Wren would be awarded $27,650 in the form of a payout from the Recovery Fund unless either Ms. Wren or Respondent requested a hearing contesting the amount or propriety of the payment.

Respondent requested a hearing, which led to this matter being scheduled.

CONCLUSIONS OF LAW

“Contested case means any proceeding ... in which the legal rights, duties or privileges of a party are required or permitted by law, other than [Title 41, Chapter 6], to be determined by an agency after an opportunity for an administrative hearing.” Ariz. Rev. Stat. § 41-1001(5).

Respondent has a right to a hearing contesting any proposed payment before ROC may actually make a payment from the Fund. Ariz. Rev. Stat. § 32-1154(G); see also Ariz. Rev. Stat. § 32-1133.01(C). Consequently, this matter is a contested case, not an appealable agency action. See also Ariz. Rev. Stat. § 41-1092(3)(“‘Appealable agency action’ means an action that determines the legal rights, duties or privileges of a party and that is not a contested case.”)

Unless otherwise provided by law: the party asserting a claim, right, or entitlement has the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense; and the proponent of a motion shall establish the grounds to support the motion. Ariz. Admin. Code § R2-19-119(B).

Ms. Wren filed a claim asserting that she is entitled to a payout from the Recovery Fund pursuant to Ariz. Rev. Stat. section 32-1132.Consequently, Ms. Wren bears the burden of proof show that she meets the requirements for a payout from the Fund. Ariz. Admin. Code § R2-19-119(B).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119(A).

A preponderance of the evidence is:

The 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 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the recovery fund is to provide improved protection for owners and lessees of property who contract for the construction or alteration of residential structures. McMurren v. JMC Builders, 204 Ariz. 345 (App. 2003).

“The assessments received by the registrar for deposit in the fund shall be held in trust for carrying out the purposes of the fund.” Ariz. Rev. Stat. § 32-1135.

“‘Person injured’ means “any owner of residential real property which is classified as class three property under [a section of the tax code] and which is actually occupied or intended to be occupied by the owner as a residence . . . who [is] damaged by the failure of a residential contractor . . . to adequately build or improve a residential structure or appurtenance on that real property.” McMurren at ¶ 8; see also Ariz. Rev. Stat. § 32-1131(3).

Any “person injured” by a licensed residential contractor’s violation of ROC’s statutes or rules may be awarded up to $30,000 from the residential recovery fund. But an “award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation ....” Ariz. Rev. Stat. § 32-1132(A).

“‘Actual damages’ ... mean[s] the reasonable cost of completing the contract and repairing the contractor's defective performance ‘less the part of the contract price still unpaid.’” Ramsey v. Ariz. Registrar of Contractors, 241 Ariz. 102, ¶ 8 (App. 2016)(adopting ROC’s definition of actual damages).

The preponderance of the evidence shows that Ms. Wren suffered actual damages of $27,650 as a result of Respondent’s violation of ROC’s workmanship standards. Consequently, Ms. Wren should receive a $27,650 payout from the Fund.

RECOMMENDED ORDER

IT IS ORDERED that on the effective date of the final Order in this matter, the Registrar of Contractors shall order the Fund to make a payout of $27,650 to Caroline F. Wren.

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, August 21, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000