ALJDEC decisions subject to certification as final
2020A-00388-RFA-LS-ROCRHG · Registrar of Contractors · 2022-12-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jeffrey Lynn Steele
COMPLAINANT,
v.
C & E Builders, LLC
License No. ROC 172404,
RESPONDENT.
No. 2020A-00388-RFA-LS-ROCRHG
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 17, 2022
APPEARANCES: Christa Pizzolanti (Ms. Pizzolanti) appeared on behalf of C & E Builders, LLC. (Respondent). Complainant Jeffrey Lynn Steele (Complainant) did not appear. Assistant Attorney General Scott Donald appeared on behalf of the Arizona Registrar of Contractors (ROC or Registrar).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On or about October 18, 2018, Complainant and Respondent entered into a contract wherein Respondent agreed to construct a patio extension and install a decorative underlayment to the existing patio of Complainant’s home.
Respondent issued an invoice #141 to Complainant, dated October 18, 2018, that included a charge for “Beam Stained Tongue & Groove”, in the amount of $6,900. See Exhibit 1, ROC-004.
The total contract price was $24.000.00.
Complainant paid Respondent in full for the work.
On January 23, 2020, Complainant filed a complaint with the ROC alleging poor work on the part of Respondent, specifically, “Patio roof beam is separating [sic].”
On July 1, 2020, Complainant filed an addendum to the complaint.
On August 5, 2020, ROC Investigator Steve Klein conducted a job-site inspection.
Investigator Klein observed water damage at the job-site inspection.
See Exhibit 6 and Exhibit 11, ROC-054.
9. On August 5, 2020, the ROC issued a Directive to Respondent. Through the Directive, the ROC directed Respondent to correct the following items by appropriate means:
Complaint Item 2: Laminated beam on outdoor patio has suffered water damage resulting from repeated water leaks. Beam is separating and discoloring, with some splintering.
Investigator’s Observation: Verified beam is separating at glue-lam joints
Complaint Item 3: Tongue and groove ceiling on outdoor patio is sagging, bulging and separating in areas, possibly due to resulting water damage. Tongue and groove ceiling was installed over existing drywall on the ceiling.
Investigator’s Observation: Verified wood ceiling sagging in several areas.
Complaint Item 4: There is still a small, residual water leak entering over the beam.
Investigator’s Observation: The beam cracking and ceiling issues appear to be caused from moisture.
Complaint Item 3: The general contractor failed to acquire required permits for any of the work performed.
Investigator’s Observation: Complainant states a building permit was never purchased.
• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority
10. On August 25, 2020, the ROC issued a Citation against Respondent’s license.
11. Respondent filed an answer to the Citation and the matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. Investigator Klein conducted an inspection of Complainant’s home shortly before the hearing.
13. Investigator Klein observed that the only items that needed to be repaired were the staining of the ceiling, the stucco repairs, and the removal of construction debris. See Exhibit 11, ROC-054-055.
14. A hearing was held on June 7, 2021.
15. On June 15, 2021, Administrative Law Judge Sondra Vonella issued a decision finding that Respondent failed to perform work in a workmanlike manner, in violation of Arizona Revised Statues (A.R.S.) § 32-1154 (A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-108(a). Judge Vonella found that Respondent failed to comply with the Directive without valid justification, in violation of A.R.S. § 32-1154(A)(22).
16. On June 29, 2021, the ROC adopted Judge Vonella’s decision.
17. On or about February 7, 2022, Complainant filed a claim with the ROC for a payout from the ROC’s recovery fund.
18. Katelyn Rolling, Legal Assistant II at the ROC, reviewed the claim.
19. Complainant submitted a bid from Color My World in the amount of $3,800, dated November 15, 2021. The bid included descriptions for the following work:
Supply and install House of Fara 3⁄4 x 1 3⁄4 Oak Crown molding model 9555 from the Home Depot. Stain the underside of the covered patio and crown molding with Sherwin Williams Exterior grade stain. Customer to pick the color. Paint the columns and part of wall on the back of the house with Sherwin Williams Exterior flat exterior paint. Fill in cement patio where post was removed with self leveling concrete.
20. Ms. Rolling did not use the bid from Color My World to calculate Complainant’s actual damages because the bid included concrete work that was beyond the scope of the Directive.
21. Complainant submitted a bid from Ghaster Paintings and Coatings, dated March 21, 2022, in the amount of $5,250 (Ghaster bid). See Exhibit 19. The bid included costs for labor, materials, equipment and work during normal business hours. See id. The Ghaster bid included the following description of work:
Revised proposal for the exterior painting Staining of Back Patio Ceiling at the Steele residence.
Protect area not to be painted by masking and covering.
Putty Finish Nail Holes in Patio Ceiling Prior to staining.
Install 3” Cedar Molding around perimeter of Patio Ceiling where Stucco Meets Ceiling.
Apply Sherwin Williams “Deck Scapes” WB Semi-Transparent Stain to Patio Ceiling/Molding.
Apply Loxon Masonry primer to existing new stucco/patched areas.
Apply Sherwin Williams “Super Paint” 100% Acrylic flat paint to primed stucco. (Color to match existing).
Haul off Plywood left by previous Contractor.
Bid includes all labor, materials, equipment and work during normal business hours.
Bid doesn’t include any other areas/items not listed.
22. Ms. Rolling contacted Investigator Klein during her review of the claim. Ms. Rolling inquired with Investigator Klein whether the Ghaster bid aligned with the contract and the Directive.
23. Investigator Klein determined that the bid was appropriate. See Exhibit 20, ROC-100.
24. On June 9, 2022, Ms. Rolling sent the following e-mail to Investigator Klein:
...............................
According to paragraph nine on page four of the Administrative Law Judge Decision (see the attached), Complainant advised you at the prehearing jobsite inspection that the roof is no longer leaking, and that the only items remaining to be completed are the staining of the ceiling, stucco repairs, and removing construction debris. And you testified at the hearing that Respondent had replaced the beam and the ceiling, and had obtained the permit; however, the ceiling still needs to be stained and the stucco still needs to be repaired. Can you please elaborate on why staining and painting are necessary to complete the project?
...............................
Errors in original.
25. On June 9, 2022, Investigator Klein provided the following response:
Hello, At the time of inspection the new ceiling that was installed was raw wood. It needed to be stained like the original. There's photos of the original ceiling in the file. Stucco repairs were made but they were not painted. I believe that would be the painting and staining I referred to. I apologise for not being clear and I hope this helps. Thank you,
Errors in original.
26. The ROC calculated Complainant’s actual damages based on the Ghaster bid. The ROC determined that Complainant’s actual damages were equal to the cost listed in the Ghaster bid: $5,250.
27. On March 23, 2020, the ROC notified Complainant that the ROC would award $5,250 to Complainant from the ROC’s recovery fund.
28. Respondent requested a hearing regarding the award determination.
29. A hearing was held on November 17, 2022.
30. At hearing, the ROC presented the testimony of Ms. Rolling and submitted Exhibits 1 through 24. Ms. Pizzolanti testified on behalf of Respondent and submitted Exhibits F, J, K, L, and S.
31. At hearing, Ms. Pizzolanti contended that the Ghaster bid was excessive. Ms. Pizzolanti stated that regarding line item, “Beam Stained Tongue & Groove”, provided in invoice #141, Respondent charged Complainant $800 for stain & labor, $1,200 for the Glulam Beam, $1,000 for installation and labor, $3,000 for tongue and groove lumber, and $900 for tongue and groove labor. Ms. Pizzolanti contended that Respondent never agreed to perform painting work for Complainant. Ms. Pizzolanti argued further that Ghaster bid does not provide information about the price charged per square foot.
32. In support of her case, Ms. Pizzolanti submitted a bid from Extreme Services for staining, wood trim, and paint touch ups in the amount of $2,500. See Exhibit K.
33. Ms. Pizzolanti requested a “guestimate” from Color My World on November 1, 2022 by email that provided, in relevant part, as follows:
Can you please provide me with a guesstimate for the following; 2000 sqft exterior home located in phoenix - Brown home staying with desert paint colors scheme 150 to 200 sqft T&G stained under covered patio Looking for a price per sqft or a general idea! Thank you.
34. On November 9, 2022, Color My World responded:
Hi Christa, Without seeing the house our rough estimate for a 2000 sq ft house is $2600 for 2 colors with Sherwin Williams Superpaint 5 year warranty. To stain the ceiling on the covered patio is about $600.00 Thanks, Bob Johnson
35. It is undisputed that the Color My World representative that provided the estimate never visited Complainant’s home.
36. The Administrative Law Judge concludes that Respondent failed to provide sufficient evidence to establish that the Ghaster bid was excessive or inappropriate. The Administrative Law Judge finds that the Ghaster bid was within the scope of the Directive as it describes work that was necessary to repair Respondent’s deficient work.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
A.R.S. § 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. The award appears to properly remedy the workmanship and abandonment violations for which Respondent was responsible. Respondent failed to establish 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 a payout from the Residential Contractors’ Recovery Fund in the amount of $5,250.
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, December 7, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
C & E Builders, LLC
2487 S. Gilbert Road
Suite 106-239
Gilbert, Az. 85295
[email redacted]
Jeffrey Lynn Steele
3123 E. Claire Drive
Phoenix, AZ 85032
[email redacted]
By Miranda Alvarez
Legal Secretary