ALJDEC decisions subject to certification as final

2020A-03184-RFA-LS-ROC · Registrar of Contractors · 2021-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffery Wade Smith,

COMPLAINANT,

v.

Clark Construction LLC

DBA: Harry Clark,

License No. ROC 176229,

RESPONDENT.

No. 2020A-03184-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2021

APPEARANCES: Complainant Jeffery Wade Smith appeared on behalf of himself. Harry Clark appeared on behalf of himself. Assistant Attorney General Sarah A. Asta appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about June 29, 2020, Complainant filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor workmanship against Clark Construction, LLC DBA: Harry Clark (H Clark), in connection with a residential remodeling project that included tile installation. See Exhibit 1.

2. ROC Investigator John Smith conducted a job-site inspection and discovered loose tiles, chipped grout, and missing grout. See Exhibits 9 and 10. Investigator Smith also observed loose and chipping tile in the master bedroom, the guest bathroom, and the living room near the piano. See id.

3. The ROC issued a Directive to H Clark. See Exhibit 11. The Directive provided, in relevant part, as follows:

Complaint Item 1A: “...they used the wrong color grout for repairs... all repairs are failing, tiles still popping loose and lossing the grout...” Complaint Item 1A specifically addresses tiled areas in the master bedroom, the guest bathroom, and in the living room near the complainant’s piano.

Investigator’s Observation: Verified: there are loose tiles, chipping grout, and missing grout. The respondent acknowledged working on these areas within the last two years.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4- 9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

requiring that H Clark correct the poor work substantiated by Investigator Smith during the job-site inspection. See Exhibit 11.

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

4. H Clark failed to correct the deficient work and the ROC issued a Citation against H Clark’s license. Through the Citation the Registrar alleged that H Clark violated A.R.S. § 32-1154(A)(3), R4-9-108(a); A.R.S. § 32-1154(A)(12) , A.R.S. § 32-1158; A.R.S. § 32-1154(A)(22).

5. H Clark filed a timely answer to the Citation.

6. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

7. A hearing was held on November 9, 2020. The Administrative Law Judge issued a decision finding that H Clark violated A.R.S. § 32-1154(A)(3), R4-9-108(a); A.R.S. § 32-1154(A)(12) , A.R.S. § 32-1158; A.R.S. § 32-1154(A)(22).

8. The Judge also recommended that H Clark’s license be suspended.

9. On December 9, 2020, the Registrar issued a Final Administrative Decision and Order adopting the Judge’s decision.

10. On or about May 6, 2021, Complainant filed a claim with the ROC for a payout from the Recovery Fund. Complainant reported the following information on the claim:

The amount of the contract was $44,500

A change order in the amount of $4,450

A total amount of $48,950 was paid by Complainant to H Clark for the construction project.

11. The lowest bid submitted obtained by Complainant with the claim was $23,052.63 from Manuel Alberto Amado DBA: Odama Construction and Roofing Co (Odama). Odama proposed to demolish the existing tile and install new flooring.

12. On July 23, 2021, Investigator Doug Ulmer consulted with Investigator Smith regarding the claim by e-mail. See Exhibit 29. The July 23, 2021 e-mail provided, in relevant part, as follows:

Good Afternoon,

The Complainants in the above referenced matter have submitted a claim to the Recovery Fund, which includes bids to replace the entire floor (please see attached).

I have a question for you involving the floor: Are the grout issues so severe that they can only be repaired by replacing the entire floor?

13. Investigator Smith notified Investigator Ulmer that the only way to replace the tiles was to replace the entire floor. See Exhibit 29. Investigator Smith’s e-mail response to Investigator Ulmer provided, in relevant part, as follows:

Doug, simply stated, yes.

The issue is there is no concrete board or any other type of concrete base between the tile and the wood subfloor.

The current tile is installed directly on top of a wood subfloor.

The only way a contractor could properly repair the verified areas is to remove the tile, install a concrete backer board, then install new tiles.

To do this in only certain areas would cause the new tiles to be 1/2 to 3/4 inches higher than any adjoining tiles.

The only way to complete the needed repair without 1/2 inch to 3/4 inch lippage is to redo the entire floor.

I can explain by phone if it would be helpful.

Thank you,

14. Investigator Ulmer determined that Complainant’s actual damages were limited to the amount of the lowest bid, $23,052.63, because there was no amount left owing on the contract.

15. On August 13, 2021, the ROC issued a Notice of Claim for Administrative Award wherein the ROC notified Complainant that it would award a recovery fund claim award in the amount of $23,052.63.

16. H Clark requested a hearing regarding the proposed award amount.

17. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

18. A hearing was held on October 21, 2021 and November 3, 2021.

19. At hearing, Mr. Clark contended that the bid from Odama exceeded the scope of the Directive. Mr. Clark contended that the floor could be repaired without replacing the entire floor. The Registrar presented credible testimony and evidence that H Clark’s deficient work could only be repaired by replacing the entire floor.

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.”

After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainant’s actual damages. The preponderance of the evidence shows that the floor had to be completely replaced to properly remedy the workmanship violations for which Respondent was responsible. The Registrar properly calculated Complainant’s actual damages based on the amount of the lowest bid, $23,052.63.

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 $23,052.63.

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, November 22, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors