ALJDEC decisions subject to certification as final

2022A-05868-RFA-LS-ROC · Registrar of Contractors · 2024-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Josh Forsythe

COMPLAINANT

Paul Bryant Rubens

License No. ROC 303278,

RESPONDENT

No. 2022A-05868-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 23, 2024

APPEARANCES: Arizona Assistant Attorney General Mona Baskin represented the Arizona Registrar of Contractors (Registrar). Josh Forsythe (Complainant) represented himself. Paul Bryant Rubens (Respondent) represented himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Exhibits 1 through 8.

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FINDING OF FACT

1. Complainant filed a complaint with the Registrar alleging abandonment and poor work on the part of Respondent, in connection with a residential remodeling contract.

2. The Registrar assigned the complaint to one of its investigators, Jason Simpson (Investigator Simpson).

3. Investigator Simpson conducted a job-site inspection and issued a Directive based upon the complaint items that he substantiated at the job-site inspection.

4. The Registrar issued a Directive to Respondent requiring that Respondent make specific repairs within a specific timeframe. See Exhibit 2. After Respondent failed to comply with the Directive, the Registrar issued a Citation against Respondent’s license. Respondent filed a timely answer to the Citation and the matter was referred to the Office of Administrative hearings for an evidentiary hearing.

5. A hearing was conducted on January 6, 2022. After the hearing, Administrative Law Judge issued a Recommended Decision concluding that Respondent had violated A.R.S. § 32-1154(A) (1), (8), (3) and (A) (22).

6. On February 8, 2023, the Registrar accepted the Recommended Decision.

7. On or about August 20, 2023, Complainant filed a claim with the Registrar’s Recovery Fund. Complainant reported the following items on the complaint:

The amount of the contract was $104,392.68

Complainant paid Respondent $56,030.87 pursuant to the contract.

8. Complainant included estimates to repair Respondent’s deficient work with the claim.

9. Douglas Ulmer is a Legal Assistant with the Registrar. Mr. Ulmer has worked for the Registrar for approximately 10 years. Mr. Ulmer reviewed the claim.

Mr. Ulmer verified that the amounts regarding the amount of the contract and the amount Complainant paid to Respondent under the contract were correct. See Exhibit 5, Bates 062-067. In his review of the claim, Mr. Ulmer learned that Complainant received $4,250 from the bond company to correct Respondent’s deficient work.

See Exhibit 4, Bates 046 and 048. Mr. Ulmer reviewed the underlying documentation regarding the disciplinary case and the information submitted by Complainant with the claim. Mr. Ulmer found that Complainant was eligible for a payout from the recovery fund after reviewing property documents from the Maricopa County Assessor’s office and a warranty deed that established that Complainant and his wife owned the property at the time of the contract. See Exhibit 4.

10. Mr. Ulmer explained that in reviewing the bids that included the same corrective work, he chose the lower bids to use in his calculation of damages. In the calculation of actual damages, Mr. Ulmer counted the bids from AllPride Marble and Granite, LLC, Castle Floors, Patch Master Serving the East Valley (Patch Master), and A-1 Home Repair. Regarding the bid from A-1 Home Repair, Mr. Ulmer discounted the bid in the total amount of $8,100.00 and the bid in the total amount of $1,730.00.

11. At hearing, Respondent contended that Patch Master Serving the East Valley does not have an active license. However, Complainant did not provide any written evidence regarding Patch Master’s license status. Complainant also contended that the estimates were outside the scope of the contract.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 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 Complainants’ actual damages. The award appears to properly remedy the workmanship and abandonment violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.

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 $30,000.00.

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.

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-137160-45720000Done this day, September 12, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff