ALJDEC decisions subject to certification as final

2019A-04469-RFA-LS-ROC · Registrar of Contractors · 2023-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Vicki Bacs,

COMPLAINANT

StoneFace Creations LLC

License No. ROC 227287,

RESPONDENT

No. 2019A-04469-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

FINDINGS OF FACT

Background and Procedure

1. StoneFace Creations, LLC (Respondent), is the holder of License Number 227287 issued by the Registrar of Contractors (Registrar).

2. On or about September 5, 2019, Complainant Vicki Bacs filed a Complaint with the Registrar against Respondent alleging poor work in connection with tile work performed by Respondent at a residence in Phoenix, Arizona. (Registrar’s Exhibit 2).

3. Thereafter, on February 26, 2020, the Registrar issued a Citation charging Respondent with a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). (Registrar’s Exhibit 2).

4. After a hearing before an Administrative Law Judge held on July 15, 2020, and August 24, 2020, the Registrar issued a Final Administrative Decision and Order on October 20, 2020, finding that Respondent had violated A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22) as charged in the Complaint. (Registrar’s Exhibit 4). Pursuant to the Order, the Registrar suspended Respondent’s license for one day and imposed a civil penalty in the amount of $250.00.

5. On or about July 26, 2022, Complainant filed a claim in an amount of $27,400.00 to the Residential Contractors’ Recovery Fund (“Recovery Fund”) with the Registrar. (Registrar’s Exhibit 1).

6. On December 7, 2022, the Registrar issued a Notice of Claim for Administrative Payout in which the Registrar determined that Complainant would receive a payout of $16,623.82 from the Recovery Fund. (Registrar’s Exhibit 9).

7. Respondent filed a timely request on December 19, 2022, for a hearing on the Registrar’s Notice of Claim for Administrative Payout. (Registrar’s Exhibit 10).

8. 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 Recovery Fund. A hearing was held on March 2, 2022, at 9:00 A.M.

9. At hearing, the Registrar presented the testimony of Tedy Quezada, Legal Assistant in the Claims Department. Complainant Vicki Bacs appeared and testified on her own behalf. Bruce Roth, Member of Respondent, appeared and testified on behalf of Respondent. The Tribunal received and admitted Registrar’s exhibit numbers 1 - 10. No exhibits were submitted by Complainant or Respondent.

10. Tedy Queseda testified on behalf of the Registrar that in determining Complainant’s actual damages resulting from Respondent’s deficient work, she reviewed two bids from Complainant (Registrar’s Exhibit 5) and requested additional bids from Complainant. (Registrar’s Exhibit 8). She stated the lowest bid to correct the deficient work outlined in the Directive was from Desert Crest, LLC, in the amount of $19,538.72, from which she deducted $1,625.00 which she indicated was an amount that did not address work that needed to be completed. She stated she calculated the actual damages to be the bid amount ($17,913.72) less the unpaid balance on the contract Complainant had with Respondent ($1,289.90), which equaled $16,623.82. (Registrar’s Exhibit 9). She noted that the bid chosen indicated replacing only 100 square feet of tile. (Registrar’s Exhibit 8).

11. Complainant Vicki Bacs testified that she did not appeal the recovery amount but stated that she had other bids that were much higher which she indicated showed the legitimacy of the bid used by the Registrar.

12. Bruce Roth, Member of Respondent who appealed this matter, declined to present any testimony but did mention that he thought the bid used by the Registrar was high if the travertine he installed could be reused.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. After the Registrar has determined the amount of the payout from the Recovery Fund to which Complainant is entitled, Respondent bears the burden of proof to establish that the Registrar’s calculations were erroneous or not supported by a preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372 (1952).

3. “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 at p. 1220 (8th ed. 1999).

4. The Registrar’s final decision in the underlying workmanship case established that Respondent did not comply with the Registrar’s workmanship standards and that Complainant potentially was a person who had been injured by Respondent’s violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. The only issue in the hearing on Complainant’s claim to the Recovery Fund is the measure of her damages.

5. A.R.S. § 32-1132.01 describes the measure of damages that an eligible homeowner is entitled to recover from the Recovery Fund:

...

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.

2. Must 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.

...

D. The maximum individual award from the residential contractors' recovery fund is $30,000. An individual claimant may not be awarded more than the maximum individual award.

E. Monies in the residential contractors' recovery fund may not be awarded for attorney fees or costs, except in contested cases appealed to the superior court.

...

H. For the purposes of this section, "actual damages" means the reasonable cost of completing the contract and repairing the contractor's defective performance, minus the part of the contract price still unpaid.

6. The Registrar has demonstrated that the actual damages in this case is the amount of $16,623.82, calculated by the reasonable cost of completing the contract and repairing the contractor's defective performance ($17,913.72), minus the part of the contract price still unpaid.($1,289.90). Respondent, who appealed this case, presented no evidence to establish that the Registrar’s calculations were erroneous or not supported by a preponderance of the evidence.

7. Accordingly, the Tribunal finds that the Registrar did not err in proposing a payout in the amount of $16,623.82 from the Recovery Fund to compensate Complainant for her actual damages caused by Respondent’s violations.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that on the effective date of the final order in this matter, the Recovery Fund shall pay $16,623.82 to Complainant.

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 forty (40) days from the date of that certification.

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001

-137160-45720000Done this day, March 22, 2023.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically or by mail to:

Martín Quezada, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Seth T. Hargraves

Office of the Attorney General

[email redacted]

StoneFace Creations LLC

[email redacted]

Vicki Bacs

[email redacted]

By: OAH Staff

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001

-137160-45720000