ALJDEC decisions subject to certification as final

2020A-02453-RFA-LS-ROC · Registrar of Contractors · 2021-09-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Quinton Fair

COMPLAINANT,

v.

Ethical Const. Inc.,

License No. ROC 217556,

RESPONDENT.

No. 2020A-02453-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 20, 2021

APPEARANCES: Complainant Quinton Fair appeared on behalf of himself. No one appeared on behalf of Respondent Ethical Const. Inc. (Ethical). Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On or about May 17, 2020, Complainant Quinton Fair filed a complaint

against Ethical alleging poor work and abandonment on the part of Ethical in connection with a construction project.

An investigator from the Registrar of Contractors conducted a job-site

inspection.

On July 7, 2020, the Registrar issued a Directive to Ethical. Through the

Directive, the Registrar directed Ethical to repair complaint items 1 through 6. See Exhibit 6.

On July 24, 2020, the Registrar issued a Citation against Ethical’s license.

Through the Citation, the Registrar alleged that Ethical may have violated Arizona Revised Statues (A.R.S.) § 32-1154(A)(3) and (A)(22). The Registrar also alleged that Ethical may have violated Arizona Administrative Code R4-9-108(b).

On August 20, 2020, the Registrar issued a Final Administrative Decision

and Order (Default) finding that Ethical violated the provisions of A.R.S. § 32-1154(A)(3) and (A)(22).

On or about April 5, 2021, Mr. Fair filed a claim for a payout from the

Registrar’s Recovery Fund. Mr. Fair reported the following information on the

claim:

The amount of the contract was $14,260.

Mr. Fair paid $11,000 to Ethical.

Mr. Fair received $9,000 from the contractor’s bond.

The lowest bid to repair and/or complete the contract was $17,725.54.

Mr. Fair submitted bids to repair the work from Experts AZ LLC (Experts) and

JBS Remodeling LLC (JBS).

Katelynn Rolling is a Legal Assistant II at the Registrar. Ms. Rolling calculated

Mr. Fair’s actual damages. Ms. Rolling used the bid from JBS in its calculation of Mr. Fair’s actual damages because Experts is not a licensed contractor in the State of Arizona.

9. The amount of the bid from JBS was $17,258.63. Ms. Rolling appropriately

subtracted a total amount of $6,054.75 from $17,258.63, because the bid included several items that were not included in the original contract and in the Directive. See Exhibit 19, Bates ROC 084. Therefore, Ms. Rolling concluded that the cost to repair the work was $11,203.88. Because Mr. Fair received $9,000 from the contractor’s bond company, Mr. Fair’s estimated loss was reduced to $2,203.88. Ms. Rolling verified that Mr. Fair’s wife, Patrice Smith Fair, paid $10,000 to Jamika Graves for the construction work. However, the Registrar discounted the $10,000 because Ms. Graves is not a licensed contractor in the State of Arizona.

Ms. Rolling concluded that Mr. Fair had an unpaid balance of $14,260.

Because Mr. Fair’s estimated loss was $2,203.88, Ms. Rolling recommended a payout of ($2,203.88 - $14,260) -$12,056.12. In this case even if the Registrar included the alleged amount paid to Ethical in the amount of $11,000 in the calculation of damages, the recommended payout would be reduced to -$1,056.12. Ms. Rolling concluded that Mr. Fair had not incurred actual damages. Therefore, the Registrar denied Mr. Fair’s request for a payout from the Fund.

11. On June 26, 2021, the Registrar issued a Notice a Notice and Order

of Recovery Fund Claim Denial to Mr. Fair.

12. Mr. Fair filed a timely request for hearing regarding the denial.

13. A hearing was held on August 20, 2021.

14. At hearing, Ms. Smith Fair testified that she was directed by Lamarcus Reed

to pay Mr. Reed and his wife Jamika Graves for the construction work. Ms. Smith Fair made Zelle transfers to Ms. Graves with the exception of $2500 that she paid in cash to Mr. Reed. See Exhibit 14 and Ms. Smith Fair’s hearing testimony.

15. Jamika Graves is not a licensed contractor in the State of Arizona.

CONCLUSIONS OF LAW

Complainant bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

Ariz. Rev. Stat. section 32-1132(A) provides, in relevant part, as follows:

An 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.

Upon consideration of the evidence presented at hearing, the

Administrative Law Judge concludes that Complainant failed to establish by a preponderance of the evidence that the Registrar’s June 26, 2021 Notice a Notice and Order of Recovery Fund Claim Denial was improper.

5. Consequently, the Registrar appropriately denied Complainant’s Recovery Fund claim.

ORDER

IT IS ORDERED that Quinton Fair’s appeal is dismissed.

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 is forty days after the date of that certification.

Done this day, September 9, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors