ALJDEC decisions subject to certification as final

2021A-03650-RFA-LS-ROC · Registrar of Contractors · 2024-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Randy Thompson,

COMPLAINANT,

Desert Breeze Glass LLC

License No. ROC 287915,

RESPONDENT

No. 2021A-03650-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 8, 2024

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Charles S. Hover, III. Complainant Randy Thompson appeared on his own behalf. Cathryn Curcio, qualifying party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: State’s Exhibits 1 through 7 were admitted. _____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 287915 to Respondent.

On or about August 2, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to Respondent’s work on his home.

As a result of the workmanship Complaint, the Registrar issued a Citation against Respondent charging possible violations of Arizona Revised Statute (A.R.S.) § 32-1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her December 28, 2021 Decision, Administrative Law Judge Jenna Clark considered Respondent’s arguments and concluded that Respondent had violated the provisions of the Registrar’s statute as noticed in the Citation.

On or about January 7, 2022, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a two day suspension.

Respondent did not appeal the Final Administrative Decision.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost for repairing and completing the project.

Complainant was deemed eligible to receive an award from the Fund.

As part of the Fund claim process, Complainant submitted an invoice from HouseDoctors that Complainant had obtained and paid in order to remedy Respondent’s substandard work on the project.

On or about January 9, 2024, the Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $3,067.62. Respondent requested a hearing, believing the payout was too high. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on May 8, 2024.

Hearing Evidence

The written directive from the Registrar specified that the following items required corrective work to be completed:

Compliance Item: 1 - front of home: Trim boards were removed – when replaced 2 sets were replaced leaving 1/2" gap below installed window (not to original condition also exposing home to potential moisture as they are unsealed), trim boards have 2 nails that bent before being sunk then pounded flat causing damage to the wood, a wood screw was used, 1 set of wood trim is coming away from the home.

Investigator’s Observation: At the time of the inspection the trim boards on the house (reused old trim) did in fact have large gaps in areas at the front of the residence, one board is pulling away from the residence and nail that when hammered were damaged and still used for the finish trim. Allegation is verified. Respondent shall correct by the appropriate means

. . . . .

Compliance Item: 2 - on stucco areas at front of home, 4 major holes were punched by installers leaving home exposed to moisture and insects.

Investigator’s Observation: At the time of the inspection the areas in question were verified. Large holes in stucco were present after window replacement. Allegation is verified. Respondent shall correct by the appropriate means

. . . . .

Compliance Item: 3 - slider door installed in bedroom casing is cracked - caused by installers hitting against the wall carrying it up the stairs.

Investigator’s Observation: At the time of the inspection the slider door had a crack in the top left corner post installation. Allegation is verified. Respondent shall correct by the appropriate means.

. . . . .

Compliance Item: 4 - slider door is unfinished on the outside - leaving a hole unsealed and exposed to moisture/insects.

Investigator’s Observation: At the time of the inspection the exterior door was unfinished and did contain holes around the perimeter. Complainant stated that he will be hiring a different contractor for finish trim. Holes on the exterior of the door were present at the installation, between the door and stucco. Allegation for unsealed holes is verified. Respondent is not responsible for finish trim on sliding door per complainant’s comments. Respondent shall correct holes by the appropriate means.

. . . . .

All errors contained in original.

Tedi Quezada, Legal Assistant II for the Fund, testified that she reviewed all required documentation to determine that Complainant was eligible to access the Fund.

Ms. Quezada further reviewed the written directive from the Registrar that had been issued, Judge Clark’s December 28, 2021 Decision regarding the underlying Complaint, and the amount necessary to complete or repair the project submitted by Complainant. Ms. Quezada testified that she consulted Investigator Steven Avila with regard to the appropriateness of the invoice.

Based on Investigator Avila’s opinion, a total of $7,322.52 was appropriate. Because Complainant had an unpaid balance of $4,254.90, a total of $3,067.62 payable from the Fund was appropriate.

Complainant testified that Ms. Quezada had presented all of his evidence and provided no further testimony.

Cathryn Curcio testified on behalf of Respondent. Ms. Curcio testified that she disagreed with the scope of the repairs made by HouseDoctors and stated that what was ordered by the Registrar from the Fund was beyond the scope of the “minor repairs” Respondent was ordered to complete. She testified that the bids she received for the work she believed Respondent was ordered to complete were approximately $2,200.00.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 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.”

Because Respondent bears the burden of proof, Respondent is tasked with providing evidence to substantiate its position.

Although Respondent was unable to admit its exhibits due to its failure to produce the exhibits to OAH, State’s exhibit 5 contained emails wherein Respondent contested Complainant’s original estimate. In its emails, Respondent contested portions of the estimate, to include “shower repairs, hardy backer, Red Guard and install tiles and valve, and painting the whole front of the home.” The final invoice for work completed did not include the items Respondent was contesting. Accordingly, the amount paid to HouseDoctors also differed from the estimate objected to.

A review of the HouseDoctors’ paid invoice does not produce any evidence that the repair work completed was outside the scope of the written directive. Thus, Respondent failed to meet its burden.

Therefore, 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 $3,067.62.

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 $3,067.62.

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, May 20, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff