ALJDEC decisions subject to certification as final

2022A-04864-RFA-LS-ROC · Registrar of Contractors · 2024-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Darlene Oesau,

COMPLAINANT

Classic Garage Inc.

License No. ROC 240029,

RESPONDENT

No. 2022A-04864-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 24, 2024

APPEARANCES: Complainant Darlene Oesau appeared on her own behalf. Donald Ray, Qualifying Party, appeared on behalf of Respondent Classic Garage Inc. The Arizona Registrar of Contractors was represented by Assistant Attorney General Mona Baskin.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Exhibits 1 through 9.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 240029 to Respondent.

On or about June 13, 2022, the Registrar received a Complaint against Respondent from Complainant alleging 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 filed a timely answer to the Citation. An administrative hearing was held. In her August 29, 2023 Decision, Administrative Law Velva Moses-Thompson considered Respondent’s arguments and concluded that Respondent committed the charged violations and recommended that Respondent’s license be suspended for three days.

On or about September 21, 2023, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a three 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 B & M Painting that Complainant had received to correct the project. Complainant notified the Registrar that she was unable to obtain any additional bids as there were no other licensed contractors in the area willing to accept the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $7,793.00. 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 Evidence

The Directive from the Registrar provided as follows:

Multiple areas of the topcoat have peeled from the epoxy floor. some areas larger than 3.5 inches by 2 inches as seen in the photos with a crack card used as a size reference. multiple areas have bubbles forming at the epoxy surface.

Shaquira Adebule, Legal Assistant II for the Fund, testified that she reviewed the Directive from the Registrar that had been issued, Judge Moses-Thompson’s Decision regarding the underlying complaint, and the bid submitted by Complainant in calculating Complainant’s actual damages. Ms. Adebule concluded that the bid of $7,793.00 for the repair was appropriate.

Respondent pointed out that the quote Complainant submitted was from a competitor of his. Respondent did not offer any evidence or testimony to dispute the Registrar’s calculation of Complainant’s actual damages. Rather, Respondent wanted to argue the merits of the underlying complaint.

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 epoxy flooring 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 $7,793.00.

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 $7,793.00.

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, August 13, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Darlene Oesau

8073 N Sage Vista

Prescott Valley, AZ 86315

Registrar of Contractors

[email redacted]

Classic Garage Inc.

[email redacted]

By: OAH Staff