ALJDEC decisions subject to certification as final

2020A-04353-RFA-LS-ROC · Registrar of Contractors · 2021-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Annette Cohen,

COMPLAINANT

American Floor Coatings, LLC,

License No. ROC 249471,

RESPONDENT

No. 2020A-04353-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 25, 2021

APPEARANCES: Assistant Attorney General John Tellier represented the Arizona Registrar of Contractors. Marcy Bernasconi appeared as a witness for the Arizona Registrar of Contractors. Complainant Annette Cohen appeared on her own behalf. Carmelo Bastante appeared on behalf of Respondent American Floor Coatings, LLC.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

According to the Arizona Registrar of Contractors’ (“Registrar”) public website, on or about October 5, 2008, the Registrar issued License No. 249471, Specialty Dual CR-4 Concrete Coatings contracting license, as restricted by the Registrar, to American Floor Coatings, LLC (“Respondent”). Carmelo Bastante is the Qualifying Party and member on this license.

Pursuant to Ariz. Admin. Code R4-9-117, on June 4, 2021, Administrative Notice was taken of Respondent’s prior License record as reflected on the Registrar’s public website. Respondent’s prior License record indicates that the license is currently suspended for nonrenewal and was disciplined in Case Number 2020-04353. The license has an active $6,750.00 surety bond issued by Platte River Insurance Company effective January 5, 2021.

On or about September 4, 2020, Annette Cohen (“Complainant”) filed a complaint against Respondent with the Registrar alleging poor workmanship. In the complaint, Complainant alleged that on or about May 22, 2020, Complainant and Respondent entered into a contract whereby Respondent agreed to install a concrete coating on her garage floor for the price of $1,300.00, of which Complainant paid the full amount.

The Registrar assigned the complaint to Mike Nation (“Investigator Nation”) for investigation.

On September 28, 2020, Investigator Nation completed his inspection of the project. Respondent was not in attendance. Ultimately, Investigator Nation substantiated Complainant’s complaint items regarding seven cabinet doors that were damaged by Respondent when Respondent performed its work at Complainant’s home. Investigator Nation concluded that the work Respondent had performed fell below the Registrar’s minimum workmanship standards.

On October 1, 2020, the Registrar issued a Written Directive From The Registrar (“Written Directive”) which instructed Respondent to complete the project per agreement between the parties, correct the verified items of complaint by appropriate means, and provide written proof of completion to the Registrar no later than 5:00 p.m. on October 30, 2020. Specifically, Respondent was advised of the following:

Investigator’s Observation: Verified. I observed five (x5) Cabinet doors at south wall and two (x2) Cabinet doors at west wall. I observed signs of water and/or moisture damage via surface blisters / ripples and peeling at the bottom of the cabinet door and frame to the five (x5) Cabinets at the south wall and the two (x2) Cabinet doors at the west wall. In addition, I observed tiny brown paint spots or splatter at/near the bottom to Cabinets, as follows: One (x1) brown paint spot at Cabinet door #3 at the south wall. One (1x) brown paint spot at Cabinet door #1 at the west wall. Four (x4) brown paint spots at the Cabinet door #2 and frame at the west wall. The brown paint spots appeared to match the color of the thatch brown epoxy coating on the garage floor.

. . . The Respondent shall correct by the appropriate means. The damage to the garage cabinets represents collateral damage caused by the power spray of water to the garage floor and application of epoxy coating with a failure to protect the cabinets from damage.

On October 30, 2020, at 6:52 p.m., Complainant sent an email to Investigator Nation advising him that Respondent made no attempt to complete the required corrective work.

On November 16, 2020, a Citation was issued and sent certified and first class mail to Respondent’s address of record charging Respondent with violating any rule adopted by the Registrar, namely, failing to perform all work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3) and Ariz. Admin. Code R4-9-108(a), and for failing to take appropriate corrective action after a Written Directive was issued by the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22). Respondent was advised to submit a written Answer to the Registrar by December 1, 2020, and that failing to do so would constitute an admission of the act or acts charged in the complaint pursuant to Ariz. Rev. Stat. § 32-1155(C).

Respondent failed to file a timely written Answer to the Citation with the Registrar.

On December 14, 2020, the Registrar issued a Final Administrative Decision and Order (Default) to the parties wherein the Registrar concluded that Respondent had violated Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22) as charged in the Citation, and ordered that Respondent’s license be suspended for a period of three (3) days and that Respondent pay a $250.00 civil penalty.

On or about January 6, 2021, the Registrar received a claim for payment from the Residential Contractors’ Recovery Fund (“the Fund”) from Complainant. Complainant indicated that she anticipated to receive $1,190.00 from the Fund. Complainant also submitted a letter from Respondent’s bonding company denying Complainant’s claim, a Warranty Deed for the property with attached trust documents, and three estimates for repair.

On March 9, 2021, the Registrar issued a Notice of Claim for Administrative Award which notified the parties that the Registrar determined that Complainant was to be awarded $1,190.00 from the Fund. The Notice also advised the parties that they had until March 24, 2021, to submit a written request for an administrative hearing to contest the amount or propriety of the payment. Respondent requested a hearing.

The Registrar referred the matter to the Office of Administrative Hearings for an independent evidentiary hearing on May 25, 2021. The issue as set forth in the Notice of Hearing on Appealable Agency Action was: “Respondent has contested the Registrar’s determination regarding [Complainant’s] Recovery Fund Claim” pursuant to Ariz. Rev. Stat. §§ 32-1132 to 32-1133.01.

Hearing Evidence

At the hearing, the Registrar presented the testimony of Marcy Bernasconi, reviewer of Complainant’s Claim to the Fund, and submitted Exhibits 1-17. Complainant testified on her own behalf. Carmelo Bastante testified on behalf of Respondent.

Ms. Bernasconi testified consistently with the above-delineated Findings of Fact. Ms. Bernasconi testified regarding the three bids submitted by Complainant to the Fund for consideration. The first bid from Furniture Medic was in the amount of $1,330.00, the second bid from Zona Restoration was in the amount of $1,884.00, and the third bid from West Valley Garage Cabinets, LLC was in the amount of $1,190.00. In reviewing the bids, Investigator Nation and Ms. Bernasconi determined that the cabinets needed to be resurfaced, not replaced, and that the lowest bid in the amount of $1,190.00 was appropriate.

Ultimately, the Fund selected the $1,190.00 West Valley Garage Cabinets, LLC bid, and calculated that Complainant was eligible for a $1,190.00 payout taking into consideration the scope of the parties’ contract, the contract price, the amount paid by Complainant to Respondent, the Written Directive, and the bids submitted by Complainant.

Mr. Bastante testified that the paint used on Complainant’s cabinets was a water-based paint and that Respondent did not damage the cabinets, however acknowledged that there was “a little overspray.” Respondent contended that he was willing to pay for the repainting of the cabinets with $40.00 paint. Mr. Bastante asserted that his contract price was “fair” and that the work proposed for the repairs was “not even close in scope.” Mr. Bastante asserted that the proposed payout is “not fair” and “high priced.”

In closing, the Registrar argued that Complainant met every statutorily mandated requirement for payout from the Fund, and, per administrative calculations, Complainant was eligible for a $1,190.00 payout. The Registrar also argued that Respondent’s general disagreements with the bid the Fund selected were immaterial and that Respondent as not in a position to determine the appropriate cost of repairs as Respondent is not licensed for cabinetry or painting. Further, Respondent did not present any evidence as to what Respondent believed was an appropriate cost for repairs.

In closing, Respondent argued that the bids Complainant obtained for the Registrar’s consideration were exorbitantly high, and that the Registrar erred in accepting them. However, Respondent did not offer a bid secured from a licensed contractor that performed an inspection of the project.

Complainant argued that this situation could have been avoided if Respondent had simply covered the cabinets.

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 actual damages suffered by the claimant as a direct result of the 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 by a preponderance of the evidence that the proposed payout from the Fund is incorrect.

“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 the damage following the issuance of the Written Directive from the Registrar and failed to do so.

Respondent’s general arguments and opinions that the proposed award amount was excessive and that remediation to Complainant’s project could have been completed for less do not sustain Respondent’s evidentiary burden of proof by a preponderance of the evidence.

After review of all the evidence, the Tribunal concludes that the award proposed by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $1,190.00.

Because Respondent did not sustain its burden of proof in this matter, Respondent’s appeal must be denied.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Registrar affirm the Notice of Claim for Administrative Award dated March 9, 2021, and deny Respondent’s request to amend and/or quash the payout amount from the Fund.

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.

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-137160-45720000Done this day, June 7, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000