ALJDEC - Licensing

2022A-06507-RFA-LS-ROC · Registrar of Contractors · 2023-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Taylor E Zweifel,

COMPLAINANT

v.

Nationwide Sunrooms and Contracting LLC,

License No. ROC 316020,

RESPONDENT

No. 2022A-06507-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 1, 2023

APPEARANCES: Taylor Zweifel appeared on her own behalf. Assistant Attorney General, Wesley Cox, Esq., represented the Registrar of Contractors. Richard Craven represented Nationwide Sunrooms and Contracting LLC.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 316020 to Respondent.

On or about August 5, 2022, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, poor work (the workmanship complaint).

As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely of Ariz. Admin. Code R4-9-108; Ariz. Rev. Stat. § 32-1154(A)(8); and Ariz. Rev. Stat. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In the Administrative Law Judge Decision, Administrative Law Judge Roger Geddes considered Respondent’s arguments and concluded, among other things, that “Complainant has presented sufficient evidence to establish cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(2)(b) and § 32-1154(A)(22)” because there was no evidence presented that Respondent submitted the additional documents requested by the city for the permit. The evidence was insufficient to support Respondent’s claim that a permit could not be obtained due to the purported illegality of the pre-existing structure. Respondent failed to show that there was a valid justification for not performing corrective action.

On or about June 8, 2023, the Registrar issued a Final Administrative Decision and Order, finding the violations and imposing a five 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 bids from two different contractors that Complainant had received to correct the project.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $15,500.00. 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 was held on November 1, 2023.

Hearing Evidence

The 2nd Amended Written Directive from the Registrar specified that:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 16, 2022. The due date of the Directive has been extended to allow time for permitting/inspection to be completed. If additional time beyond December 16, 2022 is required by the Respondent they may request an extension prior to the expiration of this Directive (December 16, 2022).

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item 1: We were informed a permit was not required by Nationwide due to utilizing the existing structure (informed via in person and I requested clarification via email). Therefore, a permit was not obtained by neither homeowner nor contractor prior to construction (we checked the city website online to see if permit was obtained by contractor). Was a permit required? Under the payment schedule in the contract, it states, "Deposit to lock in Raw Goods, Begin Engineered Drawings, Design, Permit Documentation & HOA Approval." Therefore, did we pay for a permit that was not obtained?;

Investigator’s Observation: The work performed by the respondent (patio cover on attached patio) should be permitted and inspected. Respondent was not aware that a permit was required. Respondent should comply with all requirements of the local building authority and provide electronic copy of passed final inspection to Investigator.

Governing Rule: A.R.S. §32-1154 (A) (2) (b), Departure from or disregard of: A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

. . . .

All errors in original.

Katelyn Rolling, Claims Reviewer for the Fund, testified that she reviewed the Directive from the Registrar that had been issued, Judge Geddes’ April 2, 2023, Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Ms. Rolling concluded that the lowest bid of $15,500.00 for the demolition and construction of the pergola was appropriate.

Richard Craven argued on behalf of Respondent that the bids ought not to be used to determine damages as bids were not the final total. Mr. Craven argued anyone could bid any price but until the project was completed, appropriate damages could not be calculated. Mr. Craven attempted to re-litigate the workmanship complaint when he argued there was no need for the project to be demolished and rebuilt because eventually a permit was obtained. Furthermore, Mr. Craven testified there was no way to establish actual damages because bids are not the same as invoices.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 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.”

Respondent had an opportunity to correct the faulty work following the written directive from the Registrar and failed to do so.

The Registrar established that the bids submitted by Complainant appropriately reflected her actual damages.

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 entitled to a payout from the Fund in the amount of $15,500.00.

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 $15,500.00.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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, November 20, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

[email redacted]

[email redacted]

Taylor Zweifel

Phoenix, AZ 85014

[email redacted]

Nationwide Sunrooms and Contracting LLC

[email redacted]

By: OAH Staff