ALJDEC decisions subject to certification as final

2020A-05272-RFA-LS-ROCRES · Registrar of Contractors · 2022-10-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marciann Lynn Roohparvar,

COMPLAINANT

R & D Appel, LLC

DBA: The Edge Pools

License No. ROC 213782,

RESPONDENT

No. 2020A-05272-RFA-LS-ROCRES

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 29, 2022

APPEARANCES: Complainant Marciann Lynn Roohparvar appeared on her own behalf. Randy Appel appeared on behalf of Respondent R & D Appel, LLC, doing business as The Edge Pools. Assistant Attorney General Justin Larson represented the Arizona Registrar of Contractors. Eric Ulinger appeared as a witness for the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (“Registrar)” issued License No. 213782 to R & D Appel, LLC, doing business as The Edge Pools (“Respondent”).

On or about November 6, 2020, the Registrar received a Complaint against Respondent from Marciann Lynn Roohparvar (“Complainant”) alleging that portions of the work Respondent performed pursuant to the parties’ contract were 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. In his April 26, 2021 Decision, Administrative Law Judge Adam D. Stone considered Respondent’s arguments and concluded that Respondent violated the charged provisions of this State’s contracting laws.

On May 6, 2021, the Registrar issued a Final Administrative Decision and Order accepting the April 26, 2021 Decision and imposing a five day suspension, as well as a civil penalty. The effective date of that Order was June 15, 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 from two different contractors that Complainant had received to perform the repair to the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $24,774.77. 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 September 29, 2022.

Hearing Evidence

The Written Directive from the Registrar specified that:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A). . . .

You are directed to remedy the following violations by the appropriate means:

There is a long section of interior finish in the center area of the pool that is stained as well as several other small areas. After several acid washes the stain reappears indicating an issue with the finish itself. Additionally, several repair patches have been completed using plaster. These patches are unacceptable and are not what a reasonable person would expect from a new pool. The corrections/repairs should be of the same material and blend with the rest of the interior finish. These issues will need to be corrected by the respondent.

The right fire pot ignites within a minute or so, while the left fire pot takes an extended amount of time. The left fire pot eventually lit, but then went out again. After a few minutes, the left pot ignited again and both burned for several minutes. Both were turned off for several minutes, then re-ignited with the left pot taking a considerable amount of time before lighting. The Complainant stated that this happens frequently and that the left pot will sometimes burn for 15 minutes, then go out. There is apparently an issue with the system that needs repair. This will need to be corrected by the respondent.

Eric Ulinger, Claims Reviewer for the Fund, testified that he reviewed the Written Directive from the Registrar that had been issued, Judge Stone’s April 26, 2021 Decision regarding the underlying Complaint, the parties’ contract, the payments made by Complainant, the letter from Respondent’s bonding company, the deed to the property, and bids submitted by Complainant, in calculating Complainant’s actual damages.

Mr. Ulinger 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 the requisite letter from Respondent’s bonding company informing Complainant that the claim was denied.

Mr. Ulinger testified that his calculations took into account the contract price of $151,530.00 and the payments made toward the contract price in the amount of $151,530.00, and concluded that there was no remaining balance on the contract.

Complainant submitted two estimates for completion of the project to the Fund. The bid from Swimming Pool Service & Repair was in the amount of $27,533.00. The bid from Morris Pools, LLC was in the amount of $26,660.00. Mr. Ulinger concluded that the lowest bid of $26,660.00 for the completion of the project was appropriate. However, he referred the bid to the assigned investigator, Wes Ellington, to verify if the bid was acceptable and in line with the scope of work contained in the Written Directive. Investigator Ellington informed Mr. Ulinger that the plumbing portion contained in the bid was not within the scope of ordered corrective work, however, the waterline tile should be included because it was more likely than not that the tile would be damaged during the corrective work and would need to be replaced. Given Investigator Ellington’s feedback, Mr. Ulinger subtracted the cost of the plumbing from the bid in the amount of $1,885.23. Mr. Ulinger recommended a payout from the Fund to Complainant in the amount of $24,774.77. Mr. Ulinger testified that Complainant did not provide any bids to repair the fire pots, and therefore, any costs associated with such work could not be included in the award.

Complainant testified that she obtained for the hearing a bid from Tatum Pools in the amount of $30,710.00 to support the costs of the repairs. Complainant also submitted a letter from CMP that provided a “guestimate” for the cost of repair to the fire pots. However, Complainant did not provide this documentation to the Registrar to consider in its review of her claim to the Fund and Complainant did not request a hearing to dispute the amount of the award.

Respondent argued that the award should be $17,500.00 because he “thinks they should have gotten an estimate form an interior company.” However, Respondent did not present any evidence to establish such assertion.

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. The burden shifts to the party challenging the amount of the payout to establish that the Registrar’s calculations were erroneous or not supported by a preponderance of the evidence. In this case, Respondent requested a hearing challenging the Recovery Fund payout. Therefore, the burden was on Respondent to establish by a preponderance of the evidence that Complainant was not entitled to a payout or that the amount of the proposed payout was erroneous or inappropriate.

“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. Further, Respondent failed to present any evidence establishing that the award from the Fund is inappropriate or erroneous.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $24,774.77.

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 $24,774.77 to Complainant Marciann Lynn Roohparvar.

IT IS FURTHER ORDERED that under A.R.S. § 32-1139(B), the Registrar shall charge $24,774.77, plus interest at a rate of ten percent a year, to Respondent R & D Appel, LLC, doing business as The Edge Pools’ License Number 213782.

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 five (5) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, October 7, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Sarah Asta

Office of the Attorney General

2005 N. Central Ave.

Phoenix, AZ 85004-1592

Marciann Lynn Roohparvar

19220 E Pine Valley Drive

Queen Creek, AZ 85142

R & D Appel LLC

DBA: The Edge Pools

22246 S Ellsworth Rd

Queen Creek, AZ 85142-8358-54864001

001

-137160-45720000

By Miranda Alvarez

Legal Secretary