ALJDEC decisions subject to certification as final
2020A-00564-RFA-LS-ROC · Registrar of Contractors · 2021-12-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ben Searer,
COMPLAINANT
v.
KLB HomeCrafters LLC
License No. ROC 316821,
RESPONDENT
No. 2020A-00564-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 1, 2021
APPEARANCES: Complainant Ben Searer appeared via Google Meet on his own behalf. Kelly Brown, appeared telephonically on behalf of Respondent KLB Home Crafters LLC. Arizona Assistant Attorney General, Sarah Asta appeared telephonically representing the Registrar of Contractors. Shaquira Adebule appeared telephonically for the Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
The Arizona Registrar of Contractors (Registrar) issued License No. 316821 to Respondent on December 5, 2017.
On or about January 24, 2020, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, that Respondent’s work was incorrect or abandoned on the remodeling project at his residence.
As a result of the workmanship complaint, on May 1, 2020, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).
Respondent filed a timely answer to the Citation. An administrative hearing was held. In her August 18, 2020, Decision, Administrative Law Judge Sondra J. Vanella considered Respondent’s arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(3) and (22) because the work performed was not completed in a workmanlike fashion and that Respondent failed to take corrective action. Judge Vanella also concluded that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).
On August 31, 2020, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a seven day suspension and a $500.00 civil penalty.
On April 19, 2021, Complainant filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost finishing the remodeling project. As part of the claim process, Complainant submitted bids from two different contractors that he had received to correct the project.
The Registrar issued a Notice of Claim for Administrative Payout, on September 17, 2021, finding that Complainant was to be awarded the amount of $30,000.00.
On October 1, 2021, Respondent requested a hearing, believing the payout was too high. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
Hearing was held on December 1, 2021.
Hearing Evidence
The Directive from the Registrar specified that:
After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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 must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 4-14-20.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Complaint Item 1: Master Bath - incorrect countertop color delivered and installed.
Investigator’s Observation: Complainant supplies sample that was the color the counter was supposed to be.
Complaint Item 2: Master Bath - shower drain installation incomplete, worker broke window - not replaced
Investigator’s Observation: Verified drain cover does not fit properly and window broken
Complaint Item 3: Guest Bath Upstairs - countertop/plumbing removed and not replaced, floor incomplete
Investigator’s Observation: Verified the work is not completed.
Complaint Item 4: Guest Bath Upstairs - tub removal/replacement, tile surround/built in shelf - incomplete
Investigator’s Observation: Verified the work is not completed.
Complaint Item 5: Guest Bath Upstairs - install shower fixtures and can light, exhaust fan electrical - incomplete
Investigator’s Observation: Verified the work is not completed.
Complaint Item 6: Guest Bath Downstairs - countertop/plumbing removed and not replaced
Investigator’s Observation: Verified the work is not completed.
Complaint Item 7: Flooring - stairs incomplete, threshold finish some incomplete some wrong color
Investigator’s Observation: Verified work is not completed and threshold is a different color.
Complaint Item 8: Kitchen - everything on contract incomplete except demo
Investigator’s Observation: Verified work is not completed
Complaint Item 9: Kitchen - cabinet order error
Investigator’s Observation: Cabinets have not been delivered.
Complaint Item 10: Upstairs paint/texture - texture thicker than contract, overspray from ceiling texture on walls
Investigator’s Observation: Verified wall texture is inconsistent with existing texture.
Complaint Item 11: Electric - back porch/hall/pool not working after original work completed by electrician
Investigator’s Observation: No building permit was purchased for the remodel.
• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.
Complaint Item 12: Electric - kitchen/family room incomplete, outlet/fan wiring upstairs incomplete
Investigator’s Observation: Verified the electrical is not completed, also no building permit was purchased.
• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.
Complaint Item 13: Front Door - metal plate order and install, tile around door/entry - incomplete
Investigator’s Observation: Verified work has not been completed
Complaint Item 14: Living room - mantle and fire place tile incomplete
Investigator’s Observation: Verified work has not been completed
Complaint Item 15: Patio door - repair/replace not complete
Investigator’s Observation: Verified work has not been completed
Complaint Item 16: Bay windows - window seats incomplete
Investigator’s Observation: Verified work has not been completed
Complaint Item 17: Outdoor Grill - new countertop/plywood decking incomplete
Investigator’s Observation: Verified work has not been completed
Complaint Item 18: Downstairs paint/texture - laundry room/downstairs guest bath - incomplete
Investigator’s Observation: Verified work has not been completed.
(All errors contained in original)
Shaquira Adebule, Claims Reviewer for the Fund, testified that he reviewed the Directive from the Registrar that had been issued, Judge Vanella’s Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Ms. Adebule concluded that the lowest bid of $51,914.53 for the correction of the issues was appropriate.
Ms. Adebule testified that the original contract price with the applicable change orders was $99,665.00. Ms. Adebule further testified that after receiving proof from Complainant, $15,900.00 in allowances were reduced from the contract price. Next, Ms. Adebule testified that Complainant had paid a total of $67,927.44 to Respondent, leaving a balance of $15,837.56. as that amount was unpaid from the original contract.
Ms. Adebule then testified that she subtracted the remaining balance from the bid which left a total of $36,076.97. Finally, Ms. Adebule testified that because this amount was greater than the $30,000.00 statutory maximum allowable payout, Complainant would only be allowed to recover $30,000.00.
Mr. Searer did not provide any additional evidence to support his claim for the award, but was frustrated at Respondent’s attempt to delay the proceedings.
Kelly Brown testified on behalf of Respondent. Ms. Brown offered no exhibits into evidence.
Ms. Brown testified that she was expecting a recovery fund payout somewhere between $17,000.00 and $22,000.00. Ms. Brown testified that she believed that the bid for $51,914.53 was too high to complete the unfinished work.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
A.R.S. § 32-1132.01(B)(1) provides that “[a]n 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.”
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.”
Respondent had an opportunity to correct and/or finish the work following the written directive from the Registrar and failed to do so.
Respondent also failed to present any evidence as to how she determined that the bid used was not an appropriate amount.
After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $30,000.00.
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 $30,000.00.
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 30 days from the date of that certification.
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-137160-45720000Done this day, December 7, 2021.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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