ALJDEC decisions subject to certification as final
2022A-00004-RFA-LS-ROC · Registrar of Contractors · 2022-12-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Roger Lee Bieberdorf,
COMPLAINANT
v.
Diamondback Air Inc.
License No. ROC 177520,
RESPONDENT
No. 2022A-00004-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 8, 2022
APPEARANCES: Complainant Roger Lee Bieberdorf appeared on his own behalf. John Herman, Owner, appeared on behalf of Respondent Diamondback Air Inc. The Arizona Registrar of Contractors was represented by Assistant Attorney General Justin Larson.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
The Arizona Registrar of Contractors (Registrar) issued License No. 177520 to Respondent.
Prior to January 26, 2022, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent’s work installing a mini split air conditioning unit was faulty.
As a result of the workmanship 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.
Respondent failed to file a timely answer to the Citation.
On April 8, 2022, the Registrar issued a Final Administrative Decision and Order (Default) finding violations and imposing a one day suspension.
Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of mini split air conditioning unit. As part of the claim process, Complainant submitted invoices showing he had paid $1675.33 to repair the project.
The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $1675.33. 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 October 18, 2022..
Hearing Evidence
The 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), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 02-28-2022.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Summarized: The mini split system in the garage is not functioning and this is the second time.
Investigator’s Observation: Verified. I observed the mini split system in the garage. The system turned on in cooling mode but did not turn on in heat mode. The respondent stated it needed looked into. If equipment fails, contractor should correct deficiency if within one year or within limits of manufacturer’s warranty.
Contractor should correct by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule
R4-9-108
Shaquira Adebule, Claims Reviewer for the Fund, testified that she reviewed the Directive from the Registrar that had been issued, the Registrar’s decision, and the invoice for the repair work. Ms. Adebule stated that she contacted Investigator Doug Barrett, who handled the underlying complaint, regarding the reasonableness of the invoice Complainant submitted. Investigator Barrett advised Ms. Adebule that he could not comment on the labor charges and noted that the invoice was over half the cost of a new unit. Investigator Barrett concluded that “it could be reasonable I guess, everything is really inflated at the moment.”
Respondent argued that the unit was still covered under the manufacturer’s warranty and questioned why the unit was replaced at a far greater cost than necessary.
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.”
Respondent had an opportunity to correct the workmanship issue following the written directive from the Registrar and failed to do so.
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 accordingly entitled to a payout from the Fund in the amount of $1675.33.
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 $1675.33.
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 40 days from the date of that certification.
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-137160-45720000Done this day, December 8, 2022.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically or by mail to:
Jeffrey Fleetham, Director
Registrar of Contractors
Diamondback Air Inc.
[email redacted]
Roger Lee Bieberdorf
[email redacted]
Justin Larson
Office of the Attorney General
[email redacted]
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-137160-45720000 Miranda Alvarez
Legal Secretary