ALJDEC decisions subject to certification as final

2021A-04040-RFA-LS-ROC · Registrar of Contractors · 2022-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bettina Damon,

COMPLAINANT,

v.

Derol Foster Briscoe

dba Doctor Construction

ROC License No. 250959,

RESPONDENT.

No. 2021A-04040-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 16, 2022 at 9:00 AM.

APPEARANCES: Assistant Attorney General Seth Hargraves, Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Douglas Ulmer as a witness. Bettina Damon (“Complainant”) appeared on her own behalf. Derol Foster Briscoe, dba Doctor Construction, (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

______________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

According to the Registrar’s public website, on November 29, 2008, the Registrar issued ROC License No. 250959 for General Dual KB-2 Residential and Small Commercial contracting to Respondent. Derol Foster Briscoe is as the Qualifying Party and Owner on the license. Respondent’s address of record for the license is 790 W. Las Lomitas Rd. Tucson, AZ 85704.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record for ROC License No. 250959, as reflected on the Registrar’s public website. The license was revoked by the Registrar on March 15, 2022, 2022. The license has been disciplined by the Registrar on 1 prior occasion. The license has a $14,000.00 surety bond issued Hudson Insurance Corporation, effective October 06, 2020.

On or about October 19, 2020, the Registrar received a complaint filed by Complainants alleging poor work performance.

On September 09, 2021, Registrar investigator Gregory Johndrow (“Investigator Johndrow”) inspected Respondent’s work on the project and determined that the work Respondent had done on the project failed to meet minimum workmanship standards.

As a result, on September 21, 2021, Investigator Johndrow issued a Directive from the Registrar to Respondent which required Respondent to notify the Registrar in writing no later than 5:00 p.m. on October 12, 2021, that substantiated complaint items 2-6 had been remediated and/or completed in compliance with the Directive or Respondent would face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22) and 32-1154(E).

On October 21, 2021, the Registrar issued a Citation and Complaint (“Citation”) to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22).

On November 05, 2021, the Registrar received Respondent’s timely Answer.

The matter was referred to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on January 04, 2022, to determine whether grounds existed for the Registrar to take disciplinary action against Respondent’s license based on alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22).

On February 02, 2022, the Registrar issued a Final Administrative Decision and Order to the parties whereby Respondent was held to be in violation of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22) without legal justification or excuse. As such, the Registrar revoked Respondent’s license and imposed a $500.00 civil penalty under Ariz. Rev. Stat. § 32-1154. On March 14, 2022, the Final Administrative Decision and Order became effective.

On April 20, 2022, the Registrar received Complainant’s petition for payment from the Residential Contractors’ Recovery Fund (“Fund”), pursuant to Ariz. Rev. Stat. §§ 32-1132(A) and 32-1154(G), in the amount of $28,000.00 - $30,000.00 to “repair/replace roof and continued interior damage due to leaks from most recent rain.” Attached were invoices for the underlying contract between the parties and proof of payments Complainant issued Respondent, a $9,000.00 bond approval letter from Respondent’s insurance company, Complainant’s deed and Santa Cruz County Assessor’s Office parcel assessment for Complainant’s property, and 2 repair bids.

On May 02, 2022, the Registrar received property damage photos from Complainant.

On May 31, 2022, the Registrar received Complainant’s request to expedite her petition.

On June 16, 2022, the Registrar issued a Document Request Letter for a copy of the check Complainant received from Hudson Insurance Company. That same date, the Registrar issued another Document Request Letter to Complainant for a third bid, as one of the bids Complainant submitted had been statutorily disqualified because it was from an unlicensed contractor.

On June 22, 2022, complainant provided the aforementioned requested documents to the Registrar.

On July 07, 2022, the Registrar issued a Notice of Claim for Administrative Award to the parties which held Complainant was awarded $24,172.47 from the Fund.

On July 18, 2022, the Registrar received an appeal letter from Respondent contesting Complainant’s award amount from the Fund.

On July 20, 2022, the Registrar again referred the matter to OAH for an independent evidentiary hearing. Per the Notice of Hearing on Appealable Agency Action sent to the parties on August 04, 2022, the issue for hearing is to determine if Complainants’ award from the Fund was properly calculated and appropriately issued pursuant to Ariz. Rev. Stat. §§ 32-1132 to 32-1133.01 and 32-1154(F), as justified by the evidence.

On September 16, 2022, an administrative evidentiary hearing took place at OAH.

Hearing Evidence

At the hearing, the Registrar called Douglas Ulmer as a witness and submitted Exhibits 1-10. Complainant testified on her own behalf. Respondent testified on his own behalf. The Notice of Hearing was also admitted into the record. The substantive evidence is as follows:

Complainant own property located at 1715 W. Mesquite Ln. Nogales, Arizona 85621, which was the site of the underlying project at issue.

Mr. Ulmer is a Legal Assistant II for the Registrar. Mr. Ulmer made the determination that Complainant was eligible for a payout from the Fund because she satisfied all statutory requirements for an administrative payout.

To determine the appropriate amount of the administrative award, Mr. Ulmer verified the $12,669.00 contract amount between the parties, the contract terms, the $2,334.00 credit Respondent gave Complainant on the contract, the $9,000.00 Complainant received from Respondent’s bond insurance company, and the $10,335.00 Complainant paid on the contract. Next, Mr. Ulmer reviewed Complainant’s repair bids and opted to accept a portion of the roof and interior bid from ProWest Roofing and Restoration (“ProWest”) totaling $21,572.97, the $24,500.00 roof repair bid from Modern Image Contracting LLC (“Modern Image”), and the $11,599.50 interior repair bid from Modern Image because they were from appropriately licensed contractors, encompassed remediations identified in the Directive, and were the least expensive bid submitted.

Ultimately, Mr. Ulmer calculated Complainants’ damages by deducting the $9,000.00 Complainant received from Respondent’s bond insurance company from her costs plus bids, resulting in a $24,172.47 administrative payout from the Fund.

Closing Arguments

In closing, the Registrar argued that the relevant and credible evidence of record established Complainant’s eligibility to access the Recovery Fund and that her administrative award amount had been properly calculated and issued.

In closing, Complainant argued that Respondent failed to sustain his burden of proof, and as such, her administrative award should be affirmed.

In closing, Respondent agreed with the parties that Complainant was eligible to access the Fund and that her administrative payout award had been properly calculated by the Registrar, noting specifically that he was, “happy Complainant’s getting her money.”

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. The matter was properly brought before OAH.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Respondent bears the burden of establishing by a preponderance of the evidence that the Fund’s payout amount was incorrect and/or improperly issued. The Registrar bears the burden to establish factors in mitigation by the same evidentiary standard.

“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.”

Pursuant to Ariz. Rev. Stat. § 32-1131 et seq., in order to be eligible to access the Recovery Fund an applicant must meet specific eligibility criteria. An individual is eligible for an award from the residential contractors’ recovery fund if they both: (1) own residential real property that is damaged by the failure of a residential contractor to adequately build or improve a residential structure or appurtenance, and (2) actually occupy or intend to occupy the residential real property as the individual’s primary residence. Additionally, the applicant must have contracted with a residential contractor who was appropriately licensed either at the time of contract execution, when the first payment on the project was made, or when the work on the project first began.

Ariz. Rev. Stat. § 32-1154(F) provides that “if a contractor’s license has been revoked or has been suspended as a result of an order to remedy a violation of this chapter the registrar may order payment from the residential contractors’ recovery fund to remedy the violation.”

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

In the case at bar, however, a detailed factual analysis is not necessary because Respondent failed to present any substantive evidence at hearing. Here, Respondent irrelevantly argued that he had not contracted with Complainant, and therefore could not be held liable for the lack of performance and/or workmanship on the underlying project. Respondent, however, also admitted that he permitted an unlicensed contractor to use his license for years in exchange for payment, including the underlying project at bar, and acknowledged that the subject matter had already been litigated and decided in Complainant’s favor. As such, Respondent failed to sustain its burden of proof in this matter.

The record reflects that the Registrar soundly established Complainant’s eligibility and how Complainant’s administrative award payout amount was properly calculated at $24,172.47. Mr. Ulmer credibly testified that he diligently reviewed all pertinent documentation, consulted, and made careful calculations to reach a final figure.

Because Respondent offered no credible evidence to rebut Mr. Ulmer’s testimony, the undersigned Administrative Law Judge must conclude that Complainant was properly awarded a $24,172.47 payout from the Fund.

Respondent’s appeal is denied.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that Respondent’s appeal be denied.

IT IS FURTHER RECOMMENDED that the Registrar affirm the $24,172.47 payout from the Fund as outlined in the Notice of Claim for Administrative Award, as issued on July 07, 2022.

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, September 26, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary