ALJDEC - Licensing
2020A-04830-RFA-LS-ROC-RS · Registrar of Contractors · 2023-04-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Denise Le Gros,
COMPLAINANT,
v.
Valdez Glass & Mirrors, LLC
DBA: Custom Showers and Windows by Referral,
License No. ROC 318270,
RESPONDENT
No. 2020A-04830-RFA-LS-ROC-RS
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 27, 2023, with further hearing on March 24, 2023
APPEARANCES: Assistant Attorney General Seth Hargraves represented the Arizona Registrar of Contractors. Doug Ulmer and Christopher Fultz appeared as witnesses for the Arizona Registrar of Contractors. Complainant Denise Le Gros appeared on her own behalf. Jeffrey Williams, Esq. represented Respondent Valdez Glass & Mirrors, LLC, doing business as Custom Showers and Windows by Referral. Javier Valdez appeared on behalf of Valdez Glass & Mirrors, LLC, doing business as Custom Showers and Windows by Referral. Interpreters Gabriella Contreras, Suzann Rodriguez, and Mark Canas provided Spanish interpreting services throughout both hearing settings.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Background and Procedure
The Arizona Registrar of Contractors (“Registrar)” issued License No. 318270 to Valdez Glass & Mirrors, LLC, doing business as Custom Showers and Windows by Referral (“Respondent”).
On or about October 9, 2020, the Registrar received a Complaint against Respondent from Denise Le Gros (“Complainant”) alleging that the work Respondent performed pursuant to the parties’ contract was performed poorly.
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, and (A)(22).
Respondent filed a timely answer to the Citation. An administrative hearing was held. Respondent failed to appear for the hearing. In her May 19, 2021 Decision, Administrative Law Judge Jenna Clark concluded that Respondent violated the charged provisions of this State’s contracting laws.
On June 14, 2021, the Registrar issued a Final Administrative Decision and Order accepting the May 19, 2021 Decision, and imposed upon Respondent a two day suspension, as well as a $200.00 civil penalty. The effective date of that Order was July 24, 2021. Respondent did not appeal the Final Administrative Decision and Order.
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 from three different licensed contractors that Complainant had received to perform the repair to the project. Complainant also submitted proof of payment from Respondent’s bond company, the Warranty Deed for the property, proof of payments made to Respondent, and proof of the refund Complainant received from her credit card company.
The Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $1,491.63. Respondent requested a hearing, believing the award was too high. 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 January 27, 2023, with further hearing on March 24, 2023.
Hearing Evidence
Doug Ulmer, legal Assistant and Claims Reviewer for the Fund, testified that once he determined Complainant’s eligibility for an award from the Fund, he calculated actual damages. Mr. Ulmer reviewed the Written Directive from the Registrar that had been issued, Judge Clark’s Decision regarding the underlying Complaint, the parties’ contract, the payments made by Complainant to Respondent, the award from Respondent’s bonding company, the deed to the property, and bids submitted by Complainant, in calculating Complainant’s actual damages.
Mr. Ulmer reviewed the Warranty Deed, as well as the Maricopa County Assessor’s parcel information to determine the ownership of the property and the property classification.
Mr. Ulmer testified that the Registrar requires a complainant to file a claim with a respondent’s bonding company as a prerequisite to obtaining a payout from the Fund. Complainant did so and received $7,500.00 from Respondent’s bonding company. Complainant also received a credit from her credit card company in the amount of $4,445.00.
Mr. Ulmer testified that his calculations took into account the contract amount of $5,889.00 and Complainant’s payments to Respondent in the total amount of $4,445.00, leaving an unpaid balance of $1,444.00.
Complainant submitted three estimates for completion of the project. The bid from For Energy was in the amount of $18,745.04. The bid from Renewal by Anderson was in the amount of $46,601.00. The bid from TrueView was in the amount of $14,880.63. Mr. Ulmer concluded that the lowest bid from TrueView, in the amount of $14,880.63 for the completion/repair of the project, was appropriate and met the requirements of the Written Directive.
Mr. Ulmer testified that TrueView’s bid entailed replacement of the windows and that this was acceptable to the Registrar because the Registrar “does not tell a contractor how to repair” and that it is “up to the bidder whether [the windows] should be replaced.” Mr. Ulmer explained that in his seventeen years employed by the Registrar, it is more common than not for a bidding contractor to perform replacement work because other contractors are reluctant to “take on the poor work of another contractor.” Mr. Ulmer testified that if the Fund disagreed with a bid for replacement, it would reject the bid, and that in this case, the bid that was accepted by the Fund was deemed appropriate and not excessive. Mr. Ulmer testified that he did not add a total of $4,950.00 to TrueView’s bid amount, as the bid notated a price of $450.00 per window to repair any rotten wood and drywall around the windows, as this amount represented speculative work. Mr. Ulmer explained that the Registrar will not pay for speculative work as it may or may not need to be done.
Mr. Ulmer subtracted $11,945.00 ($7,500.00 received from Respondent’s bonding company, plus, the $4,445.00 Complainant received as a credit from her credit card company) from the amount of TrueView’s bid in the amount of $14,800.63, which calculated to $2,935.63, from which he subtracted the unpaid contract balance in the amount of $1,444.00, resulting in an amount of $1,491.63. Mr. Ulmer therefore recommended a payout from the Fund to Complainant in the amount of $1,491.63, which he determined was the amount necessary to compensate Complainant for actual damages, to place Complainant in the position she would have been in had the work initially been performed/corrected properly by Respondent.
Complainant agreed with the Fund’s assessment and proposed award.
Investigator Christopher Fultz testified that he had been informed by Complainant that she could not find a contractor that was willing to repair the windows as installed by Respondent because they did not want to “take on the liability” and would therefore, only replace the windows.
Javier Valdez testified that he has 27 years in his industry and that in his opinion the cost to complete the project in the state he left it, would be “no more than $400.00.”
Respondent argued that the Registrar failed to appropriately calculate actual damages and that it “did not follow the statute.” Respondent argued that when Complainant “tossed the windows in the trash, [Respondent’s] violations were no longer the cause of the damages.” Respondent argued that Complainant’s damages are the result of her intervention, and therefore, she does not qualify for an award from the Fund, as “there is no cost necessary to complete or repair windows that are in the trash at a dump.” Respondent asserted that it is “exempt from finishing work that Claimant destroyed.” Respondent further argued that the bids submitted by Complainant are invalid “because they are not connected to the cost to complete or repair [Respondent’s] work.”
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 sections 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.”
Respondent had an opportunity to complete the project following the Written Directive from the Registrar and failed to do so. Respondent failed to appear for the hearing regarding the filed Complaint, which resulted in discipline being imposed on Respondent’s license. Respondent did not request a rehearing or file an appeal of the Registrar’s Final Order. Respondent presented Mr. Valdez’s self-serving testimony regarding what he believes it should cost to complete the project.
After review of the credible, substantial, probative, and relevant evidence, and considering the arguments presented at hearing, 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 $1,491.63.
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 $1,491.63 to Complainant Denise Le Gros.
IT IS FURTHER ORDERED that under A.R.S. § 32-1139(B), the Registrar shall charge $1,491.63, plus interest at a rate of ten percent a year, to Respondent Valdez Glass & Mirrors, LLC, doing business as Custom Showers and Windows by Referral’s License Number 318270.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, April 6, 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]
Jeffrey G. Williams, Esq.
[email redacted]
Seth Hargraves
Assistant Attorney General
[email redacted]
Denise Le Gros
[email redacted]
Valdez Glass & Mirrors, LLC
DBA: Custom Showers and Windows by Referral
[email redacted]
By: OAH Staff