ALJDEC decisions subject to certification as final
2022A-03557-RFA-LS-ROC · Registrar of Contractors · 2023-07-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Sarah Mobley
COMPLAINANT,
v.
Statewide Property Inspections Inc.
DBA: M & M Renovations,
License No. ROC 320679
RESPONDENT.
No. 2022A-03557-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 27, 2023
APPEARANCES: Assistant Attorney General Seth Hargraves appeared on behalf of the Arizona Registrar of Contractors. Complainant Sarah Mobley appeared on behalf of herself. Martin Eric Markzon appeared on behalf of Respondent Statewide Property Inspections, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about August 4, 2021, Complainant Sarah Mobley and Respondent Statewide Property Inspections Inc. DBA: M & M Renovations, entered into a residential home remodeling contract for the amount of $9,975.00. See Exhibit 2, Bates 044.
2. Martin Eric Markzon is Respondent’s qualifying party.
3. Respondent performed work on Complainant’s home from August 11, 2021 to November 5, 2021.
4. Complainant subsequently filed a complaint against Respondent with the Arizona Registrar of Contractors (Registrar).
5. Registrar Investigator Christopher Fultz investigated the complaint.
6. On June 10, 2022, the Registrar issued a Directive to Respondent directing Respondent to correct the following items by appropriate means, no later than 5:00 p.m., on July 1, 2022:
Compliance Item: 1 - Tiling on pony wall between tub and shower is poorly done. The bullnose tile used was too big for the width of the wall and does not fit properly nor was the tile cut properly. There is excessive grout at the junctions all up both sides of the wall.
Investigator’s Observation: The grout does not meet standards on the wall between the shower and the tub. The grout is not properly installed in other areas of the shower.
The tiling on the wall between the shower and tub is not installed properly. The facing tile was installed poorly and not properly spaced or cut. The reveal is too great.
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.
Errors in original only.
7. On November 1, 2022, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent had violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3), and (22); Arizona Administrative Code R4-9-108(A).
8. Respondent filed an answer to the Citation and a hearing was held on September 23, 2022.
9. After the hearing, the Administrative Law Judge issued a Recommended Decision concluding that that Respondent had violated A.R.S. §§ 32-1154(A)(3) and (22), as alleged in the Citation and the Complaint.
10. On March 3, 2023, the Registrar issued a Final Administrative Decision and Order (Default) adopting the ALJ’s Recommended Decision.
11. After the issuance of the Final Administrative Decision and Order (Default), Complainant submitted a claim with the Registrar for a payout from the Recovery Fund (the Fund).
12. Douglas Ulmer, Legal Assistant II at the Registrar, reviewed the claim
to determine whether Complainant was eligible for a payout from the Fund. Mr. Ulmer determined that Complainant met the eligibility requirements for a payout from the Fund. After determining the Complainant was eligible, Mr. Ulmer calculated Complainant’s actual damages.
13. Complainant submitted bids from two contractors to repair the deficient work. See Exhibit 2. The El Construction bid was the lower of the two bids. Mr. Ulmer used the bid from EL Construction to calculate Complainant’s actual damages. The bid from El Construction include the demolition of the existing tile shower and tub tile surround, and reconstructing the project. The amount of the bid from El Construction was $13,500.00.
14. Mr. Ulmer inquired with Investigator Christopher Fultz regarding the necessity of a full demolition to correct Respondent’s deficient work. See Exhibit 3. Investigator Christopher Fultz agreed that a full demolition was necessary. See id.
15. Because Complainant has paid the full amount of the contract, Investigator Fultz concluded that Complainant’s actual damages were the equivalent of the amount of the bid from El Construction: $13,500.00.
16. On March 3, 2023, the Registrar issued a Notice of Administrative Award wherein the Registrar determined that Complainant would receive an award from the Fund in the amount of $13,500.00.
17. Respondent requested a hearing to appeal the Notice of Administrative Award.
18. A hearing was held on June 27, 2023.
19. At hearing, Martin Eric Markzon testified on behalf of Respondent. Sarah Mobley testified on behalf of herself. The Registrar presented the testimony of Investigator Fultz and Mr. Ulmer. Mr. Markzon alleged that the bid utilized by Registrar to calculate Complainant’s actual damages was excessive. Mr. Markzon contended that the only item that needed to be repaired was the pony wall. Mr. Markzon argued that a complete demolition and rebuild was not required.
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.”
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 preponderance of the evidence shows that a full demolition of the shower and tub tile, along with the reconstruction of the project, was necessary to properly remedy the workmanship violations for which Respondent was responsible. Respondent failed to establish that the bid from El Construction was excessive. Respondent failed to establish by a preponderance of the evidence that the payout of $13,500.00 was improper.
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 $13,500.00.
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.
Done this day, July 17, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
By: OAH Staff