ALJDEC decisions subject to certification as final

2022A-01088-CHC-ROC · Registrar of Contractors · 2023-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Weldon Wallace Dugan,

COMPLAINANT

Masterpiece Construction Services LLC

License No. ROC 327393,

RESPONDENT

No. 2022A-01088-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 23, 2023

APPEARANCES: Complainant Weldon Wallace Dugan appeared and was represented by Tyler Woods. Richard Ferguson, Owner and Qualifying Party, appeared on behalf of Respondent Masterpiece Construction Services LLC. The Arizona Registrar of Contractors was represented by Assistant Attorney General Seth T. Hargraves.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 327393 to Respondent.

On or about February 7, 2022, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, poor work (the workmanship complaint).

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 of A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).

Respondent failed to file a timely answer to the Citation.

On or about May 31, 2022, the Registrar issued a Final Administrative Decision and Order (Default) finding the 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 completing or repairing the project. As part of the claim process, Complainant submitted a bid from Colorado River Homes that Complainant had received to correct the project.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $6,291.05. 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 June 23, 2023.

Hearing Evidence

The Directive from the Registrar specified, in pertinent part, as follows:

Compliance Item: 1 - Front Door is Crooked.

Investigator’s Observation: Door needs adjustment. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Complaint Item 2: Cracked front lower window.

Investigator’s Observation: Front living room window cracked. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

. . . .

Compliance Item: 4 - Floors not laid by manufacturer spec.

Investigator’s Observation: Floor laminate tile in kitchen between island and refrigerator has been jammed into place damaging the tile. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

. . . .

Compliance Item: 13 - Missing privacy screens on side gates.

Investigator’s Observation: Missing privacy screens on side gates. CONTRACTOR TAKE CORRECTIVE ACTION.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

At the time of the compliance jobsite inspection, the investigator determined that the items listed above had not been corrected.

The bid Complainant submitted included work to be done to address the door and the windows.

Kyle Nelson, Legal Assistant II for the Fund, testified that he reviewed the Directive from the Registrar that had been issued and the bid submitted by Complainant in calculating Complainant’s actual damages. Mr. Nelson concluded that the bid was appropriate. Mr. Nelson noted, while the Registrar initially recommended a payout of $6,291.05, that was the result of a math error. Mr. Nelson indicated that, based on a review of the bid, the correct payout should have been $6,275.60

Complainant testified that after he obtained the bid that he submitted, Respondent performed the corrective work on the windows. As a result, the only item he was seeking compensation for from the Fund was the front door. Complainant agreed that the bid submitted supported a payout of $5,521.60 for the front door.

Respondent questioned the estimate for the front door. Respondent argued that the work needing to be performed should be no more than $985.00. Respondent asserted that it had attempted to correct the front door several times for Complainant and therefore, knew how much work needed to be done to complete the project. Respondent attempted to argue the underlying workmanship complaint, however, that issue was not before this tribunal.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B) provides, in pertinent part, as follows:

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.

2. Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

The Registrar bears the burden of proof to establish that the proposed payout from the Fund is correct 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 front door following the written directive from the Registrar and failed to do so.

After review of all the evidence, the Tribunal concludes that an award from the Fund as adjusted at the hearing accurately reflected Complainant’s actual damages. Accordingly, Complainant is accordingly entitled to a payout from the Fund in the amount of $5,521.60.

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 $5,521.60.

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, July 6, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Masterpiece Construction Services LLC

[email redacted]

Registrar of Contractors

[email redacted]

Kevin M. Estevez Esq.

HOLDEN WILLITS PLC

[email redacted]

By: OAH Staff