ALJDEC decisions subject to certification as final

2022A-06389-RFA-LS-ROC · Registrar of Contractors · 2023-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lee Smith-St Louis

COMPLAINANT,

Triple Crown Construction, LLC

DBA: Beavers Construction,

License No. ROC 240678,

RESPONDENT.

No. 2022A-06389-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 9, 2023

APPEARANCES: Complainant Lee Smith-St. Louis appeared on behalf of herself. Aarin Beavers appeared on behalf of Respondent Triple Crown Construction, LLC. Assistant Attorney General Seth Hargraves appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

1. On or about March 25, 2022, Complainant Lee Smith-St Louis and Respondent Triple Crown Construction, LLC, entered into a residential construction contract wherein Respondent would perform concrete foundation work for Complainant, in the amount of $32,240.00. See Exhibit 2, Bates 044.

2. Respondent performed work on Complainant’s home from about March of 2022 to June of 2022.

3. On or about August 1, 2022, Complainant filed a complaint against Respondent with the Arizona Registrar of Contractors (Registrar).

4. The Registrar investigated the complaint.

5. On September 29, 2022, the Registrar issued a Directive to Respondent that directing Respondent to correct the following items by appropriate means, no later than 5:00 p.m., on October 18, 2022:

Compliance Item: 2 - Didn’t have enough concrete had to have a second delivery.

Investigator’s Observation: There are some serious issues with the pour and finish of the stem wall.

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.

Compliance Item: 3 - Stem wall in Garage was mixed by hand in wheel barrow, resulting in rats nets and aggregate and sand not mixed and visible.

Investigator’s Observation: Various location on the stem wall, the wall is failing. The material wasn't mixed properly and is flaking off or falling out. Several cold joints that are roughly 3 inches deep in the stem wall.

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.

Compliance Item: 4 - Stem wall is neither level and is out of plumb.

Investigator’s Observation: The back wall of the stem wall is 24 inches out of plumb. There is also areas when the level is more than 2 inches out in less then 10 feet.

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.

6. 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)(1), (3), and (22); Arizona Administrative Code R4-9-108(A).

7. Respondent did not file a timely answer to the Citation.

8. On November 25, 2022, the Registrar issued a Final Administrative Decision and Order (Default) concluding that Respondent had violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1), (3), and (22) as alleged in the Citation and the Complaint. The Registrar suspended Respondent’s license for two days.

9. 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).

10. Complainant received a payout from Respondent’s bond company in the amount of $9,000.00.

11. 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.

12. Mr. Ulmer discovered that the parties modified the contract in March of 2022 to $23,835.00. See Exhibit 2, Bates 046 and 050.

13. Complainant paid Respondent a total $29,635 for work performed under the contract. See Exhibit 2, Bates 049 and 51.

14. Complainant submitted bids from two contractors to repair the deficient work. See Exhibit 2, Bates 053 and 054. Complainant submitted a bid from On-Concrete, LLC in the amount of $17,500.00. Complainant submitted a bid from Rockin Custom Concrete in the amount of $17,745.29. See id.

15. Mr. Ulmer chose the lower bid from On-Key Concrete to calculate Complainant’s actual damages.

16. Mr. Ulmer subtracted the amount of the bond from the lowest bid to determine Complainant’s actual damages.

17. Complainant’s actual damages were $8,500.00.

18. On February 24, 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 $8,500.00.

19. Respondent requested a hearing to appeal the Notice of Administrative Award.

20. Respondent’s appeal was set for hearing on May 9, 2023 at 9:00 a.m.

21. A hearing was held on May 9, 2023.

22. At hearing, Aarin Beavers testified on behalf of Respondent. The Registrar presented the testimony of Mr. Ulmer. Mr. Beavers alleged that Complainant did not provide full payment for the construction work. Mr. Ulmer provided testimony regarding his review of the claim and the issuance of the Notice of Administrative Award.

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. Furthermore, the award appears to properly remedy the workmanship violations for which Respondent was responsible. Respondent failed to establish that Complainant owed a balance under the contract. Respondent failed to establish by a preponderance of the evidence that the payout of $8,500.00 was improper or excessive.

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 $8,500.00.

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.

-54864001

001

-137160-45720000Done this day, May 30, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

By: OAH Staff