ALJDEC decisions subject to certification as final

2020A-00097-RFA-ROC · Registrar of Contractors · 2021-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Regina Ann Glover,

COMPLAINANT,

v.

Rental Renovators Inc.

DBA: P J Hussey Construction,

License No. ROC 217689,

RESPONDENT.

No. 2020A-00097-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 29, 2021

APPEARANCES: Patrick Monahan, Esq. appeared on behalf of Complainant Regina Ann Glover. Tim Overton, Esq. appeared on behalf of Respondent Rental Renovators, Inc. DBA: P J Hussey Construction. Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Rental Renovators (Rental) holds license number 217689 issued by the Registrar of Contractors (the Registrar).

2. Rental remodeled Ms. Glover’s kitchen pursuant to a contract.

3. On or about January 6, 2020, Ms. Glover filed a complaint with the Registrar against Rental’s license. The complaint contained an allegation that Rental performed poor work in connection with a residential remodeling project.

4. On or about February 20, 2020, Registrar Investigator Jack Grimm completed a jobsite inspection.

5. On or about March 5, 2020, the Registrar issued a Directive to Rental. The March 5, 2020 Directive provided, in relevant part, as follows:

..................................

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

Complaint Item 3: Cabinets not matching up, crooked.

Investigators Observation: Cabinet box installation appears acceptable. Scribe trim installed at left of the pantry is not tight to the wall and needs to be corrected. Doors need to be adjusted for alignment, appearance and functionality.

Governing Rule: 32-1154(A)(3) Poor Work

Complaint Item 4: Countertops not what I wanted. The wrong cut.

Investigators Observation: The selection for the counter top edge is not written in any contract documents, however the homeowner text (photo of text in documents) the sales person (that confirmed the selection) that she wanted double ogee edge and that is not what is installed. A double Ogee edge has two coves cut into the top not one as installed. Double Ogee does not necessarily mean the top needs to be double thickness. Kitchen counter top edge selection needs to be corrected per agreement.

Governing Rule: 32-1154(A)(3) poor work, not per agreement.

Complaint Item #16: Andrew verbal agreement that 6 can lights can be put in.

Investigators Observation: Observed recessed can lights installed in the kitchen ceiling. Parties state no permit or inspections took place regarding changes or additions to electrical components. Contractors needs to obtain a permit from the appropriate city or county code jurisdiction and obtain inpsections and approvals.

Governing Rule: 32-1154(A)(2)(b) Departure from or disregard of building code.

Complaint Item #17: Cabinet doors different color.

Investigators Observation: Observed door on overhead corner cabinet to the left of the sink that is not a good color match to the test of the cabinet doors and needs to be corrected.

Governing Rule: 32-1154(A)(3) Poor work.

Complaint Item #18: Cabinets warped.

Investigators Observation: Observed one upper cabinet door on the west kitchen wall that appeared to be warped. A warp of up to 1/8 inch in 30 inches is considered acceptable. This door is greater than that and needs to be corrected.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #19: Granite has sharp pieces that can but you.

Investigators Observation: Installed backsplash has some issues with alignment at corner and locations of large chips on leading edge that need to be addressed.

Governing Rule: 32-1154(A)(3) Poor work

.....................................

6. On April 3, 2020, the Registrar issued a Citation against Rental’s license. Through the Citation, the Registrar alleged that Rental may have violated Ariz. Rev. Stat. section 32-1154(A)(2)(B); Ariz. Rev. Stat. section 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(22).

7. On April 28, 2020, the Registrar issued a Final Administrative Decision and Order (Default) that contained findings that Rental had violated Ariz. Rev. Stat. section 32-1154(A)(2)(B); Ariz. Rev. Stat. section 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108; Ariz. Rev. Stat. section 32-1154(A)(22).

8. On or about May 7, 2020, Ms. Glover filed a claim for a recover fund award with the Registrar. Ms. Glover reported on the claim form that the amount of the contract was $15,687.06. Ms. Glover reported a change order in the amount of $4,215.78. Ms. Glover also reported that she had paid Rental $15,018.71.

9. The Registrar requested that Ms. Glover submit at least three contractor bids to correct Rental’s work. Ms. Glover submitted bids from ReVamp Kitchen & Bath, LLC, Talavera Custom, LLC, Baker Brothers Floorcovering Inc. DBA: Baker Bros Area Rugs and Flooring, Bayside Contracting, Inc. DBA: Creative Kitchens, Breise Construction, LLC, National First Response Corp, and AZ Design & Build LLC.

10. Registrar Recovery Fund Reviewer Marcy Bernasconi reviewed

Ms. Glover’s claim. Ms. Bernasconi disallowed the bids from Talavera Custom, LLC, Bayside Contracting Inc. DBA: Creative Kitchens, and Breise Construction, LLC, because the bids were excessive. Ms. Bernasconi disallowed the bid from ReVamp Kitchen & Bath, LLC because the bid was excessive and outside the scope of authorized work for the holder of the license number listed on the bid: Cranmore Carpet Cleaning LLC DBA: Cranmore Flooring Sales.

11. Ms. Bernasconi reviewed the remaining bids from AZ Design & Build LLC, Baker Brothers, and National First Response Corp. Ms. Bernasconi used the bid from National First Response Corp in the amount of $18,321.05 to calculate Ms. Glover’s payout because it was the lowest bid.

12. The amount left owing on the contract was $4,884.13.

13. Ms. Bernasconi determined that Ms. Glover was entitled to a recovery fund award amount that was the equivalent of $18,321.05 less $4,884.13, the amount left owing on the contract. The Registrar recommended that Ms. Glover be paid $13,436.92 from the recovery fund.

14. The Registrar notified Ms. Glover that she was eligible for a recovery fund payout in the amount of $13,436.92.

15. Ms. Glover and Rental requested a hearing regarding the payout.

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

an evidentiary hearing.

17. On November 9, 2019, the Registrar issued a Notice of Hearing setting

the above-captioned matter for hearing on April 29, 2021, at the OAH in Phoenix, Arizona.

18. A hearing was held on April 29, 2021.

19. The Registrar presented the testimony of Ms. Bernasconi. Ms. Glover testified on behalf of herself. Rental presented the testimony of its qualifying party, Andrew Thruston and Investigator Grimm.

20. Ms. Bernasconi inquired with Investigator Grimm whether the bids submitted by Ms. Glover were excessive. See Exhibit 20. Investigator Grimm explained that the cabinets did not need to be replaced and that he only found that two of the upper cabinets needed to be replaced: one cabinet was warped and there was a color mismatch with a second cabinet. Investigator Grimm believed that the chips in the cabinets could be corrected with a wood fuller. Investigator Grimm opined that

Ms. Bernasconi should allow the bids for replacement cabinets if the original cabinets were not available. See id.

21. Ms. Glover argued that the recovery fund award should be based on a recent bid from National Response Corp that reflects the current cost for labor and materials in the amount of $19,852.45 in its calculation. See Exhibit 29. Ms. Glover also contended that she should be reimbursed for the amount she paid to correct electrical work in the amount of $5,955.30. See Exhibit 17.

22. Mr. Thruston argued that the bid from National Response Corp exceeded the scope of the Directive. Mr. Thruston contended that Investigator Grimm did not require that Rental make any corrections to the lower cabinetry. Regarding the upper cabinetry, Mr. Thurston explained that Investigator Grimm required that only two of the upper cabinets be replaced. Therefore, Mr. Thruston explained that the line items for the upper and lower cabinetry should be removed. Instead, the award amount should include the cost for replacement of the two upper cabinets. Mr. Thruston contacted the manufacturer of the cabinets who informed him that the cabinets that were installed in Ms. Glover’s home were available for approximately $300 each. See HA at 45:35 to 50:00. See Exhibit A.

23. Mr. Thurston also contended that the cost for materials for the countertop in the National Response Corp bid was excessive. Mr. Thurston obtained an estimate for the countertop materials from M S International, Inc. in the amount of $1,955.61. See Respondent’s Exhibit A. The bid was based on 125 square feet at a price of $15.49 per square foot. See id.

24. The recent bid prepared by National Response Corp was $19,852.45. The amount of the bid less the cost for materials at line item 5, and the cost for upper cabinets at line items 16 and 17, was $10, 868.45. The amount of $10,868.45 added to the cost for materials for the counter top in the amount of $1,955.61, and the cost of the two cabinets in the amount of $600, is $13,424.06. The amount of $13,424.06 plus tax, is $13,947.60. The amount of $13, 947.60 less the amount left owing on the contract in the amount of $4,884.13, is $9,063.47.

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.”

4. After review of all the evidence, the Tribunal concludes that the award payment amount should be calculated based on current bid from National Response. Additionally, the line items for the installation of upper and lower cabinets and the materials for the countertop should be replaced with the cost to repair only two upper cabinets. The line item for the cost for the countertop materials should be replaced with the amount shown in the bid submitted by M S International Inc. The Registrar properly discounted the reimbursement for electrical work because electrical work was not included in the complaint and Directive. The total amount of the award should be $9,063.47.

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 $9,063.47.

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, May 11, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors