ALJDEC decisions subject to certification as final

2022A-00599-RFA-LS-ROC · Registrar of Contractors · 2024-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Daniel Harper

COMPLAINANT,

Miguel's Construction Company Inc.,

DBA: Mike’s Construction Company

License No. ROC 184500,

RESPONDENT.

No. 2022A-00599-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 13, 2024

APPEARANCES: Paul M. Levine, Esq. represented Daniel Harper (Complainant). Thomas S. Moring, Esq. represented Miguel's Construction Company Inc., DBA: Mike’s Construction Company (Respondent). Assistant Attorney General Charles Hover III represented the Arizona Registrar of Contractors (Registrar).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Exhibits 1 through 6. Complainant’s Exhibits 001-006.

_____________________________________________________________________

FINDINGS OF FACT

1. Complainant and Respondent entered into a contract wherein Respondent would remodel Complainant’s pool, for the amount of $72,000. Complainant paid Respondent $54,000 pursuant to the contract.

2. Complainant later filed a complaint with the Registrar alleging poor work and abandonment on the part of Respondent.

3. The Registrar assigned the complaint to Investigator Dan Edwards who conducted an initial job-site inspection.

4. On March 11, 2022, Investigator Edwards issued a Directive requiring that Respondent correct the inside edge of the east step to the raised deck platform, by appropriate means, because it was measured to be out of plumb by 1" across an approx. 25" span. See Exhibit 1, ROC-25. The deadline to comply with the Directive was March 28, 2022.

5. Respondent failed to correct the inside edge of the east step to the raised deck platform as required under the Directive.

6. The Registrar issued a Citation against Respondent’s license alleging that Complainant had violated Arizona Revised Statutes (A.R.S.) §§ 32-114(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A). Respondent filed an answer to the Citation and the matter was referred to the Arizona Office of Administrative Hearings for an evidentiary hearing. A hearing was held on July 28, 2022. After the hearing, the Administrative Law Judge issued a recommended decision finding that Respondent had violated A.R.S. §§ 32-114(A)(3) and (22); A.A.C. R4-9-108(A).

7. The Registrar adopted the Administrative Law Judge’s recommended decision.

8. On March 12, 2023, Complainant filed a claim for a payout from the Registrar’s Recovery Fund (claim). Complainant submitted a bid from Skinny Dipping Pools that proposed the following work and prices:

Demo existing deck and remove grass and noncompacted soils underneath.

$15,500.00

Repair any plumbing issues should they arise: allowance

$1500.00

Provide and compact approx.. 105 tons of ABC.

$11,300.00

Form and repour the deck: includes cantilever, turn down around raised areas, acrylic deking.

$39,380.00

Remove the tile and install new tile. Tile to be determined.

$3500.00

Remove the sheer descent and cut the raised bond beam and demo to proper height. Install a new sheet descent of a different type of water feature. TBD.

$5000.00

Total for all above items not including any options $76,180.00.

9. The claim was reviewed by the Registrar’s Legal Assistant, Tedi Quezada. Ms. Quezada inquired with Investigator Edwards as to whether the bid from Skinny Dipping Pools was excessive. See Exhibit 2, ROC-070. Investigator Edwards sent an e-mail to Ms. Quezada stating that the bid was not in accordance with the work ordered in the Directive and should be rejected. See id.

10. Before sending the March 28, 2023 email, Investigator Edwards told

Ms. Quezada that the inside edge of the east step to the raised deck platform could be repaired through line item 4 of the Skinny bid, “Form and repour the deck: includes cantilever, turn down around raised areas, acrylic decking. $39,380.00.” See the Hearing Audio Recording (1258 2024-11-13) - 4.AAC at 26:00 minutes to 30:00 minutes. However, Investigator Edwards told Ms. Quezada that the amount of $39,380.00 was excessive for the repair. Ms. Quezada never formed an opinion regarding how Compliance Item 4 could be repaired.

11. Ms. Quezada requested additional bids from Complainant but ultimately used two line items from the bid from Skinny Dipping Pools to calculate Complainant’s actual damages:

Demo existing deck and remove grass and noncompacted soils underneath.

$15,500.00

Form and repour the deck: includes cantilever, turn down around raised areas, acrylic deking.

$39,380.00

Ms. Quezada subtracted $18,000 balance on the contract from $54,880 to determine Complainant’s actual damages. Because the amount of $36,880 exceeds the maximum recovery fund award amount of $30,000, Ms. Quezada determined that Complainant was eligible for a recovery fund payout in the amount of $30,000.

12. Complainant submitted four bids that proposed to demolish and repour the deck. However, the bid from Skinny Pools was the lowest bid.

13. On August 7, 2024, the Registrar notified Complainant that he was eligible to a recovery fund award in the amount of $30,000.00.

14. Respondent requested a hearing regarding the determination.

15. The matter was referred to the OAH for an evidentiary hearing.

16. A hearing was held on November 13, 2024.

17. At hearing, the Registrar presented the testimony of Ms. Quezada. Complainant testified on behalf of himself.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 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.”

4. The evidence presented at hearing shows that the two line items from the Skinny Dipping Pools that were used by Ms. Quezada to calculate Complainant’s damages appropriately repaired the inside edge of the east step to the raised deck platform that was out of plumb by 1" across an approx. 25" span. There was no evidence presented at hearing to establish that the edge of the pool could have been repaired by any other means. Respondent failed to meet its burden to establish that the proposed payout was incorrect. Although Investigator Edwards opined that the bid from Skinny Dipping Pools amount to form and repour the deck was excessive, the evidence shows that the bid from Skinny Dipping Pools was the lowest of the four bids.

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 $30,000.00.

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, December 3, 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