ALJDEC decisions subject to certification as final

2021A-06547-RFA-LS-ROC · Registrar of Contractors · 2024-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kerri Ann Long

COMPLAINANT,

Sonoran Peak Construction & Roofing LLC

License No. ROC 305664,

RESPONDENT.

No. 2021A-06547-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 1, 2024

APPEARANCES: Complainant Kerri Ann Long (Complainant) represented herself. Barry Cohen represented Respondent Sonoran Peak Construction & Roofing LLC (Respondent). Assistant Attorney General Mona Baskin represented the Arizona Registrar of Contractors (Registrar or ROC).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits 1 through 7.

_____________________________________________________________________

FINDINGS OF FACT

On November 20, 2023, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on December 26, 2023. The matter was continued and the hearing was conducted on February 1, 2024.

The Notice of Hearing provided that the issue set for determination was, “the Registrar’s determination regarding [Complainant’s] Recovery Fund Claim.”

Complainant filed complaint number 2021A-06547with the Registrar alleging poor workmanship on the part of Respondent. The complaint was assigned to Registrar Investigator David Fagerburg who conducted an initial job-site inspection.

The Registrar issued a Directive, with addendums, directing Respondent to make certain required repairs. See Exhibit 1, ROC-075 to ROC-083. In its investigation, the Registrar found that Respondent failed to correct several complaint items, including, but not limited to, complaint item 4, addendum complaint item 4, and addendum complaint item 20. See Exhibit 1, ROC-081 to ROC-083. The compliance job-site inspection notes documented by Investigator Fagerburg provided, in relevant part, as follows:

.............................

Compliant Item 4: two weeks after painting the ceiling and walls the smooth plaster that had been applied to ceiling and wall cracks appeared in the plaster. Contractor has not fixed or repainted; Investigator’s Observation: The respondent is in compliance with the directive.

.............................

Addendum Compliant Item 4: added to the complaint of cracks in ceiling and walls, the plaster finish is wavy with major defects on the walls and around the ceiling fixtures Investigator’s Observation: The kitchen ceiling drywall modification observed is wavy with noticeable seam lines standing at a normal position in natural light. The respondent is not in compliance with the directive.

.............................

Addendum Compliant Item 20: East, west and north eves were cut back 1’ leaving poor workmanship of a wavy roof and facia line. Investigator’s Observation: During the corrective work, collateral damage was caused to the asphalt roof shingles at the east and west gable eaves. The respondent acknowledged the damage was not corrected prior to the compliance inspection. The respondent is not in compliance with the directive.

.............................

Respondent failed to comply with the Directive. A citation was issued to Respondent. A hearing was set after Respondent submitted an answer to the citation with the Registrar. After the conclusion of the hearing, Administrative Law Judge Eigenheer (ALJ) issued a Recommended Decision concluding that that Respondent violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3) and (22). The Registrar adopted the Recommended Decision and disciplined Respondent’s license. The ALJ found that Respondent failed to correct several items listed in the Directive and Addendums, including, but not limited to complaint item 4, addendum complaint item 4, and addendum complaint item 20.

On May 24, 2023, Complainant filed a Residential Recovery Fund claim (claim) based on ROC complaint number 2021A-06547. Complainant submitted an itemized bid from Renco LLC license no. ROC 196424, in the amount of $4,571.00, for the replacement of plywood and the repair of the shingles at the eaves. See Exhibit 5, ROC-200 to ROC-201. Complainant also submitted a bid from Todd Whittaker Drywall Inc., license no. ROC 271236, in the amount of $2,794.00, for the painting of the ceiling and ceiling drywall repairs. See Exhibit 5, ROC-185 – ROC - 187ROC-204 – ROC 206.

The claim was reviewed by Doug Ulmer, Legal Assistant for the Registrar. In review of the claim and all supporting documents it was determined that the itemized bid from Renco LLC license no. ROC 196424 in the amount of $4,571.00, and the bid from Todd Whittaker Drywall Inc., license no. ROC 271236 in the amount of $2,794.00, included the necessary repairs to comply with the Directive. Mr. Ulmer determined that the contract between Complainant and Respondent under complaint number 2021A-06547 was $73,489.49 as the ALJ found that the parties had entered into a times and materials contract. See Exhibit 2, ROC-122, ROC-130, and Mr. Ulmer’s testimony on the Hearing Audio Record (0914 2024-02-01).AAC at 01:02:00 to 01:15:00. Complainant paid Respondent a total of $73,489.49 and Respondent acknowledged that Complainant owed him nothing on the contract. See id.

Mr. Ulmer determined that because Complainant did not owe Respondent a balance on the contract, Complainant’s actual damages was the equivalent of the sum of the bids from Reno LLC and Todd Whittaker Drywall Inc., in the amount of $7,365.00.

On or about October 18, 2024, the Registrar issued a Notice of Administrative Award (Notice), the Registrar notified Complainant that she would e awarded $7,365.00 from the Residential Recovery Fund.

Respondent timely requested a hearing regarding the Notice.

The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

At hearing, the Registrar presented the testimony of Doug Ulmer, Legal Assistant II for the Registrar. Barry Cohen, Respondent’s owner, testified on behalf of Respondent. Mr. Cohen contended that the award amount was excessive by approximately $2,000. Mr. Cohen stated that the bids used by the Registrar to calculate damages included a repair to the middle of the roof that was not included in the Directive.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.

2. A.R.S. § 32-1132.01 provides:

*******

B. 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:

1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

*******

3. “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.”

4. After review of all the evidence, the Tribunal concludes that the award provided

by the Fund is an accurate reflection of Complainant’s actual damages. The award appears to properly remedy the workmanship violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive an award from the Residential Contractors’ Recovery Fund in the amount of $7,365.00.

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, February 21, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff