ALJDEC decisions subject to certification as final

2022A-05602-RFA-LS-ROC · Registrar of Contractors · 2023-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brandon Nigri and Melanie Cutfield,

COMPLAINANTS

Foreman Electric LLC

License No. ROC 332066,

RESPONDENT

No. 2022A-05602-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2023

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Mona Baskin. Complainants Brandon Nigri and Melanie Cutfield appeared on their own behalf. Joshua Foreman, Owner and Qualifying Party appeared on behalf of Respondent Foreman Electric LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Exhibits 1 through 7.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 332066 to Respondent.

On or about July 11, 2022, the Registrar received a Complaint against Respondent from Complainants alleging poor work and abandonment with respect to the project (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)(1); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely of A.A.C. R4-9-108(A) and (B); and A.R.S. § 32-1154(A)(22).

Respondent failed to file a timely answer to the Citation.

On or about February 10, 2023, the Registrar issued a Final Administrative Decision and Order (Default) finding the violations and imposing a two-day suspension of Respondent’s license.

Complainants 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, Complainants submitted bids from two different contractors that Complainants had received to correct the project.

The Registrar issued a Notice of Administrative Award, finding that Complainants’ actual damages were $28,566.59. Respondent requested a hearing, believing the payout was too high. Complainants 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 November 16, 2023.

Hearing Evidence

The Directive from the Registrar verified the following complaint items submitted in the complaint:

Compliance Item #1: Contract stipulates “Remove and replace existing out side panels.” Incomplete. . . .

Compliance Item #2: AZ room roof - Penetration missing flashing. . . .

Compliance Item #4: AZ room roof - Internal conduit connectors used instead of external connectors. . . .

Compliance Item #5: AZ room roof - Conduit supported by untreated wood. Poor workmanship. . . .

Compliance Item #7: Conduit connectors on east side of building not suitable for exterior use. E3803.6 Raceway seals. . . .

Compliance Item #8: NM Romex use on exterior of building. E3803.10 Wet locations and TABLE E3801.4 allowable locations. . . .

Compliance Item #9: Extension cord as permanent wiring under sub panel. 2021 IFC 603.6 Extension cords. . . .

Compliance Item # 12: Exterior conduit penetrations insufficiently sealed. Poor workmanship. Conduit near water runoff on western wall not properly covered. . . .

Compliance Item #14: Receptacles/switches missing screws in living room. . . .

Compliance Item #15: Poorly installed conduit on north wall of living room. . . .

Compliance Item #16: Box covers in study are not flush. Poor workmanship. . . .

Compliance Item #17: Fixture is cracked in study. . . .

Compliance Item #19: Poorly mounted conduit in office. Poor workmanship. . . .

Compliance Item #20: Open interior conduit hole in office closet. Poor workmanship. . . .

Compliance Item #22: Square LED closet overhead lamp not secured to the ceiling in both office closets. . . .

Compliance Item #30: Bathroom light fixture - unprofessional install. . . .

Compliance Item #31: Bathroom Poor workmanship vanity junction box. . . .

Compliance Item #32: Bathroom vanity fixture mounted crooked/covered in mud. Poor workmanship. . . .

Compliance Item#33: Drywall damage in bathroom above vanity. Poor workmanship. . . .

Compliance Item #36: Kitchen GFCI failure to right of sink. . . .

Compliance Item #37: Kitchen Non GFCI outlets near sink. . . .

Compliance Item #38 Kitchen Undersized service entry wire in interior sub panel. . . .

Compliance Item #39: Kitchen The neutral and ground has connected bus bars in sub panel. . . .

Compliance Item #40: Kitchen Sub panel missing breaker cover. . . .

Compliance Item #42: Unsecured conduit in primary bedroom. Poor workmanship. . . .

Compliance Item #45: Poorly installed conduit on western wall in dining room. . . .

Compliance Item #46: Dining room light fixture not secured. . . .

Compliance Item #47: Secondary switch in dining room not connected. . . .

Compliance Item #48: Rooftop conduit supplying AC unit not replaced. . . .

Tedi Quezada, Claims Reviewer for the Fund, testified that she reviewed the written directive from the Registrar that had been issued and the bids submitted by Complainants in calculating Complainants’ actual damages. Parker and Sons submitted a bid of $83,500.00 and Penguin Air & Plumbing submitted a bid of $33,566.59. Both bids included a complete rewire of the home.

Ms. Quezada spoke to the investigator on the matter who confirmed that, because no permit had been obtained, it was unlikely any electrical contractor would be willing to fix Respondent’s work and a complete rewire would be necessary. The investigator also opined that the bid from Parker and Sons was probably so high because it did not actually want to take on the project and wanted to remove itself from consideration.

Ms. Quezada concluded that the lowest bids of $33,566.59 for the rewiring of the project was appropriate.

Ms. Quezada noted that Complainants still owed $5,000.00 on the underlying contract, so the bid of $33,566.59 was reduced by $5,000.00 to calculate Complainants’ actual damages of $28,566.59.

Respondent questioned how Complainants could receive such a windfall in that they paid $15,000.00 and had been awarded in excess of $28,000.00 from the Fund. Respondent incorrectly calculated that Complainants would get a complete rewire of their home for $5,000.00 out of pocket.

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 electrical issued following the written directive from the Registrar and failed to do so. Further Respondent failed to contest the Citation or appeal the Registrar’s final order in this matter.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainants’ actual damages. Accordingly, Complainants are entitled to a payout from the Fund in the amount of $28,566.59.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainants receive a payout from the Residential Contractors’ Recovery Fund in the amount of $28,566.59.

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 7, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Foreman Electric LLC

[email redacted]

Brandon Nigri

Melanie Cutfield

[email redacted]

Registrar of Contractors

[email redacted]

By: OAH Staff