ALJDEC decisions subject to certification as final

2019A-04193-RFA-LS-ROC · Registrar of Contractors · 2021-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roy Grinnell,

COMPLAINANT,

v.

Ikon Painting LLC

DBA: Ikon Painting,

License No. ROC 306016,

RESPONDENT.

No. 2019A-04193-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 26, 2021

APPEARANCES: Complainant Roy Grinnell appeared on behalf of himself. Bradley Larson appeared on behalf of Respondent Ikon Painting, LLC. Assistant Attorney General Sarah A. Asta appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Ikon Painting, LLC holds license No. 306016 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 19, 2019, the Registrar received a complaint from Complainant Roy Grinnell alleging poor workmanship on the part of Respondent in connection with a residential repair contract. Respondent agreed to remove the rust from Mr. Grinnell’s fence and to repaint the fence. The Registrar’s investigator conducted a job-site inspection and substantiated complaint item 1 of the complaint: “The Contractor failed to scrape all the rust and missed painting some Ares of the fence and let rust exposed.” See Exhibit 2, pg. 1.

3. On September 25, 2019, the Registrar issued a Directive to Respondent wherein the Registrar ordered Respondent to correct complaint item 1 by appropriate means.

4. Respondent failed to comply with the Directive.

5. On October 31, 2019, the Registrar issued a Citation charging Respondent with violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3), namely A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(22); A.R.S. § 32-1154(A)(12) and A.R.S. § 32-1158.

6. Respondent requested a hearing regarding the Citation. A hearing was held on January 3, 2020. After the completion of the hearing, Administrative Law Judge Antara Nath Rivera issued a decision recommending that the complaint be closed. 7. On February 18, 2020, the Registrar issued a Final Administrative Decision and Order that modified the Administrative Law Judge’s decision. The Registrar found that Respondent had violated A.R.S. § 32-1154(A)(3) and (22) as charged in the complaint. Pursuant to the order, the Registrar suspended Respondent’s license for one day and ordered that Respondent pay a civil penalty of $250.

8. On or about October 26, 2020, Mr. Grinnell filed a claim for payment to the Residential Contractors’ Recovery Fund (Fund) with the Registrar. Mr. Grinnell submitted three repair bids with the claim.

9. On December 16, 2020, the Registrar issued a Notice of Claim for Administrative Award that provided, in relevant part, as follows:

After review of the claim and all supporting documentation, the Fund has determined that Complainant is to be awarded $5,604 in the form of payment issued by the Fund.

10. Respondent filed a timely request for hearing on the Registrar’s Notice of Claim for Administrative Award.

11. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding the amount and/or propriety of the payment from the Fund.

12. A hearing was held on February 26, 2021.

13. The Registrar presented the testimony of Katelyn Rolling, Legal Assistant II, and submitted exhibits 1 through 20. Mr. Grinnell testified on behalf of himself.

14. Ms. Rolling personally reviewed Mr. Grinnell’s claim for payment from the Fund. Ms. Rolling explained that the Registrar must review all documentation that is necessary on a claim for an award from the Fund before the Registrar makes a decision for an award. Ms. Rolling reviewed the entire file in this matter including the 3 bids and the amount that Mr. Grinnell paid Respondent. Ms. Rolling determined that a proper award from the Fund for Mr. Grinnell’s actual damages was $5,604.

15. Ms. Rolling created a Recovery Fund Cost spread sheet to determine

Mr. Grinnell’s actual damages. The lowest bid submitted by Mr. Grinnell was from Triple B Garage Doors and Gates (Triple B). However, Ms. Rolling did not consider it because the bid was not itemized and illegible. See Exhibit 14, pg. 1. Ms. Rolling chose the bid from Wolff Management because the bid was itemized, legible, and appropriate. Because Mr. Grinnell paid Respondent the full amount for the work described in the contract, Ms. Rolling determined that Mr. Grinnell was entitled to an award that was equal to the full amount of the bid from Wolff Management, in the amount of $5,604.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.

2. A.R.S. § 32-1132.01 provides:

*******

B. An 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.

*******

3. “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.”

4. 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. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive an award from the Residential Contractors’ Recovery Fund in the amount of $5,604.

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.

Done this day, March 5, 2021

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors