ALJDEC decisions subject to certification as final

2019A-03688-RFA-ROC · Registrar of Contractors · 2020-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joseph John Malinconico Jr.,

COMPLAINANT,

Danny Meador Construction LLC,

License Nos. ROC 296063, 286709,

RESPONDENT.

No. 2019A-03688-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 27, 2020 and September 30, 2020

APPEARANCES: Complainant Joseph John Malinconico, Jr. appeared on behalf himself. Assistant Attorney General Sara Asta appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

ADMITTED EXHIBITS: Registrar’s Exhibits 1 through 18.

_____________________________________________________________________

FINDINGS OF FACT

On or about October 16, 2018, Danny Meador entered into a new home

construction contract with Mr. Malinconico Jr.

2. From March of 2019 to May of 2019, Danny Meador began constructing a new home for Mr. Malinconico Jr.

3. On or about July 22, 2019, Mr. Malinconico Jr. filed a complaint with the Arizona Registrar of Contractors (ROC) against Danny Meador’s license. The complaint contained an allegation that Danny Meador performed poor work in connection with a pool remodeling contract.

4. On or about August 13, 2019, ROC Investigator Steve Klein completed a jobsite inspection.

5. On or about August 13, 2019, the ROC issued a Directive to Danny Meador. The August 13, 2019 Directive provided, in relevant part, as follows:

After investigation, the Registrar has verified 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. You may not perform or hire other contractors to perform work that is outside the scope of your license. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on August 30, 2019.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Danny was paid $4,950 for a change order for front entry columns. Columns were installed crooked.

Investigator’s Observation: Upon inspection at this JSI I observed that in fact 1 of the 4 columns did appear to out of place.

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: Unsafe Work Site walls are falling down, wood and trash.

Investigator’s Observation: Upon inspection at this JSI I observed that in fact one wall had fully fallen down and 2 other walls were leaning over quite a bit. There was also wood laying around and trash that had blown into the surrounding yard and trees/brush. There was also some concrete that was either extra or from the cleanout that was left in the front yard.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

6. On September 4, 2019, the ROC issued a Citation against Danny Meador’s license. Through the Citation, the ROC alleged that Danny Meador may have violated Ariz. Rev. Stat. section 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(12) and (22).

7. Danny Meador requested a hearing regarding the September 4, 2019 Citation.

8. Danny Meador did not appear at the hearing.

9. On September 24, 2019, the ROC issued a Final Administrative Decision and Order of Default finding that Danny Meador violated A.R.S. § 32-1154(A)(3), (12), and (22).

10. On September 30, 2019, the ROC received Mr. Malinconico Jr.’s request for a payout from the recovery fund. The total amount left owing on Mr. Malinconico Jr.’s contract with Danny Meador was $260, 971.03.

11. Mr. Malinconico Jr. entered into a repair contract with Moran Contracting and Development, Inc. (Moran) in the amount of $270,042.71.

12. The ROC considered the cost of the Moran repair contract when it calculated the payout.

13. The ROC disallowed $2,000.00 of $3,200.00 for the countertop allowance allowed under Mr. Malinconico’s contract with Danny Meador, and $1,509.08 of $5,109.08 to match the amount for appliances allowed with Mr. Malinconico’s contract with Danny Meador.

14. The ROC determined that the amount of Mr. Malinconico Jr.’s damages was equal to the Moran repair contract in the amount of $270,042.71 less $3,509.08, and the amount left owing on the contract. Because the ROC was required to pro-rate Mr. Malinconico Jr.’s payout, the ROC recommended that Mr. Malinconico be paid $4,451.90 from the recovery fund.

15. The ROC notified Mr. Malinconico Jr. that she was eligible for a recovery fund payout in the amount of $4,451.90.

16. Mr. Malinconico Jr. requested a hearing regarding the payout.

17. The matter was referred to the Office of Administrative Hearings (OAH) for

an evidentiary hearing.

18. On July 28, 2020, the Registrar issued a Notice of Hearing setting

the above-captioned matter for hearing on August 27, 2020, at the OAH in Phoenix, Arizona.

19. A hearing was held on August 27, 2020 and September 30, 2020.

20. Mr. Malinconico Jr. testified on behalf of himself and submitted exhibits 1 through 5. The ROC presented the testimony of ROC Legal Assistant II Katelyn Rolling and submitted exhibits 1 through 31.

21. Mr. Malinconico Jr. contended that the recovery fund payout amount was incorrect because he incurred costs in excess of $30,000 to correct Danny Meador’s deficiencies.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 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 Complainants’ actual damages.

Mr. Malinconico Jr. failed to establish by a preponderance of the evidence that the payout of $4,451.90 was improper.

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 $4,451.90.

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, October 20, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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