ALJDEC decisions subject to certification as final
2022A-02705-RFA-LS-ROC · Registrar of Contractors · 2024-05-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Susana Araceli Perez,
COMPLAINANT
v.
Superior Renovations LLC
License No. ROC 324000,
RESPONDENT
No. 2022A-02705-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 3, 2024
APPEARANCES: Complainant Susana Araceli Perez appeared on her own behalf via Google Meet. Bruno Brunelle appeared on behalf of Respondent via Google Meet. Assistant Attorney General Charles Hover III appeared via Google Meet on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Exhibits 1-12 were admitted into evidence.
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FINDINGS OF FACT
Background and Procedure
The Arizona Registrar of Contractors (Registrar) issued License No. 324000 to Respondent.
On or about April 4, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to a remodel of Complainant’s home
As a result of the workmanship complaint, on June 21, 2022, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).
Respondent filed a timely answer to the Citation. An administrative hearing was held. In her September 19, 2022 Decision, Administrative Law Judge Tammy L. Eigenheer considered Respondent’s arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).
On October 6, 2023, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a three day suspension and a $500.00 civil penalty.
On or about May 23, 2023, Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of the project.
On or about February 8, 2024, the Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $15,880.31. Respondent timely requested a hearing on or about February 15, 2024. On February 22, 2024, Complainant too requested a hearing. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
Hearing was held on October 16, 2023.
Hearing Evidence
Eric Ulinger testified on behalf of the Registrar. He was a Legal Assistant for the Registrar and reviewed Complainant’s Recovery Fund claim. Mr. Ulinger testified that he reviewed the Directive from the Registrar that had been issued, Judge Eigenheer’s Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages.
Mr. Ulinger testified that the bids Complainant had supplied were excessive as to the work which needed to be performed to comply with the Written Directive. Mr. Ulinger testified that Complainant submitted a bid by Cactus Nectar for $26,949.01, which aligned with the Written Directive.
In addition, Mr. Ulinger testified that Complainant had met the requirements for a Recovery Fund payout because Complainant owned the property, and lived in the same, which he verified this through review of the Deed. Further, Mr. Ulinger testified that Complainant had requested a payout from Respondent’s bond company, and received $9,000.00 from the company.
Mr. Ulinger then performed the following calculation:
Original contract amount $10,668.79
Less the amount paid ($ 8,600.00)
Total unpaid balance $ 2,068.47
Bid to complete the project $26,949.10
Less the unpaid balance ($ 2,068.79)
Less bond payment ($ 9,000.00)
Substantiated damages $15,880.31
Based upon all of the information, Mr. Ulinger concluded that a payout from the Recovery Fund in the amount of $15,880.31 was appropriate, and issued his Notice of Administrative Award accordingly.
Bruno Brunelle testified on behalf of Respondent and stated that he did his best to complete the job and get it all done.
Complainant testified that she agreed with the calculation and wanted the Award affirmed.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
A.R.S. § 32-1132.01(B)(1) provides that “[a]n 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.”
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.”
After review of all the evidence, the tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages, but for small mathematical error in the calculation as Cactus Nectar’s bid was $26,949.01 and not $26,949.10. Therefore, the correct formula should read:
Original contract amount $10,668.79
Less the amount paid ($ 8,600.00)
Total unpaid balance $ 2,068.47
Bid to complete the project $26,949.01
Less the unpaid balance ($ 2,068.79)
Less bond payment ($ 9,000.00)
Substantiated damages $15,880.22
Accordingly, Complainant is entitled to a payout from the Fund in the amount of $15,880.22.
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 $15,880.22.
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.
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-137160-45720000Done this day, May 17, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Superior Renovations LLC
[email redacted]
Susana Araceli Perez
[email redacted]
Charles Hover III
[email redacted]
By: OAH Staff