ALJDEC decisions subject to certification as final

2020A-03320-RFA-LS-ROC · Registrar of Contractors · 2023-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jamie English,

COMPLAINANT,

BCLD, LLC

License No. ROC 296383,

RESPONDENT.

No. 2020A-03320-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 5, 2023

APPEARANCES: Assistant Attorney General Seth Hargraves represented the Arizona Registrar of Contractors. Complainant Jamie English appeared on her own behalf with her husband, Charlie English. Respondent BCLD, LLC failed to appear. Gail Matthews appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (“Registrar)” issued License Number 296383 to BCLD, LLC (“Respondent”).

On or about July 9, 2020, the Registrar received a Complaint against Respondent from Jamie English (“Complainant”) alleging poor work with respect to Respondent’s contracted scope of work.

As a result of the Complaint, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

Respondent filed a timely answer to the Citation. An administrative hearing was held. Respondent failed to appear for that hearing. In her February 23, 2021 Decision, Administrative Law Judge Jenna Clark concluded that Respondent violated the charged provisions of this State’s contracting laws.

On March 3, 2021, the Registrar issued a Final Administrative Decision and Order accepting the February 23, 2021 Decision revoking Respondent’s license. The effective date of that Order was April 12, 2021.

Complainant thereafter filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of performing the corrective work. As part of the claim process, Complainant submitted bids and invoices from contractors that Complainant had received to perform the repair and completion of the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $22,730.25. Respondent requested a hearing to contest the proposed award. Complainant did not contest the amount of the administrative award. The Registrar referred the matter to the Office of Administrative Hearings for an evidentiary hearing.

A hearing was held on July 5, 2023. Assistant Attorney General Seth Hargraves represented the Registrar. Gail Matthews appeared as a witness for the Registrar. Jamie English appeared on her own behalf with her husband, Charlie English. Respondent failed to appear. Complainant and the Registrar stipulated to the admission of the Registrar’s Exhibits 1-6.

Hearing Evidence

Gail Matthews, the Fund reviewer, testified regarding Complainant’s eligibility and actual damages. Ms. Matthews testified that she reviewed the Written Directive issued in the underlying matter, as well as the Decision and Order, and the bids submitted by Complainant. Ms. Matthews testified that Complainant’s Complaint listed twenty-five items of complaint and that the Registrar’s assigned investigator verified nineteen of those items.

Ms. Matthews testified that Respondent was found to have been in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), which resulted in discipline being imposed on Respondent’s license.

Ms. Matthews evaluated the provided bids in light of the items verified as Respondent’s deficient workmanship and incomplete work, and found that the bids were appropriate. Ms. Matthews testified that she accepted Complainant’s bids, however, some of the items on the bids were not included in the calculation of the proposed award. Ms. Matthews explained that flooring was not included in the proposed award, and other unnecessary items were discarded in the calculation.

Ms. Matthews found that Complainant is eligible for an award from the Fund and that $22,730.25 is the appropriate award.

Complainant agreed with the Registrar’s presentation at hearing and agreed with the proposed award amount.

Respondent failed to appear for hearing, notwithstanding having requested the hearing, and consequently, did not present any controverting evidence.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(A) provides that “[t]he residential contractors' recovery fund is established, to be administered by the registrar, for the benefit of a claimant damaged by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter.” The Registrar’s final decision in the underlying workmanship case giving rise to the instant matter establishes that Respondent’s work violated the section(s) of A.R.S. § 32-1154(A) that were charged in the Citation.

For the purposes of an award under A.R.S. § 32-1132(A), A.R.S. § 32-1133.01(B) provides as follows:

An 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:

May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

When the Registrar has calculated the amount of a complainant’s compensable damages and proposed a payout from the Fund to which s/he is entitled, the calculation is a prima facie showing of the amount that the complainant is entitled to recover as a payout from the Fund. In this case, Respondent requested a hearing challenging the Recovery Fund payout.

“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 Complainant is eligible for an award from the Fund and that the award proposed by the Fund accurately reflects Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $22,730.25.

RECOMMENDED ORDER

In view of the foregoing, IT IS ORDERED that on the effective date of the final Order in this matter, the Residential Contractors’ Recovery Fund shall pay $22,730.25 to Complainant Jamie English.

IT IS FURTHER ORDERED that under A.R.S. § 32-1139(B), the Registrar shall charge $22,730.25, plus interest at a rate of ten percent a year, to Respondent BCLD, LLC’s License Number 296383.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, July 12, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Jamie English

[email redacted]

BCLD, LLC

[email redacted]

Seth T. Hargraves

Assistant Attorney General

[email redacted]

By: OAH Staff