ALJDEC decisions subject to certification as final

2022A-08044-RFA-LS-ROC · Registrar of Contractors · 2023-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joan Mizzell,

COMPLAINANT

v.

Pink Restoration LLC

License No. ROC 317853,

RESPONDENT

No. 2022A-08044-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2023

APPEARANCES: Complainant Joan Mizzell appeared via Google Meet on her own behalf. Carlos Reyes, appeared via Google Meet on behalf of Respondent Pink Restoration LLC. Arizona Assistant Attorney General, Mona Baskin appeared via Google Meet on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 317853 to Respondent.

On or about September 13, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the installation of a new garage, and front door at her residence.

As a result of the workmanship complaint, on November 10, 2022, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b); and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her March 13, 2023 Decision, Administrative Law Judge Velva Moses-Thompson considered Respondent’s arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b); and A.R.S. § 32-1154(A)(22), because Respondent abandoned the job, the work which was completed was not in conformity with the Registrar’s standards, and Respondent did not compete the required corrective work once the Written Directive was issued.

On February 15, 2023, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a one day suspension and a $250.00 civil penalty.

On or about June 9, 2023, Complainant filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of the project and help pay for the completion of the same.

The Registrar issued a Notice of Administrative Award on July 21, 2023, finding that Complainant’s actual damages were $30,000.00. Respondent timely requested a hearing on or about July 24, 2023. 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.

After two continuances, a hearing was held on October 27, 2023.

Hearing Evidence

The Directive from the Registrar on October 7, 2022 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 October 24, 2022.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means: complete all work per contract, obtain all required permits and inspections- forward me, Investigator S. Hammons#203 all permit documentation (applications- inspection results).

Complaint Item 1: “it has been over a year since the work was started and is still not completed-”

Investigator’s Observations: Verified. I observed this project to be unfinished-

Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item 3: “rood over new addition is leaking where new addition connects to existing home”

Investigator’s Observations: Verified. The compliant pointed out and showed me extensive water damage in side the entrance on the drywall ceiling and wall-

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 4: “roofer put small drains pointing over door which now leaking between stucco and frame-”

Investigator’s Observations: Verified. The complainant pointed out and showed me the area above the entrance door to have flashing inset of the stucco and terminated over the front entrance door-

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 6: “new sidewalk is unlevel by 1⁄2” which drains towards garage-”

Investigator’s Observations: Verified. I placed a level on the concrete in front of the entrance door, this area does not have positive fall away from the structure as required by code-

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 7: “floor in new addition is unlevel by 1⁄2””

Investigator’s Observations: Verified. I placed a level on the floor on the inside of the new entrance the floor is not level-

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 9: “painting cannot be completed until stucco issues are completed-”

Investigator’s Observations: Verified.

Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complaint Item 12: “no sealing was not put between new exterior wall and door frame-”

Investigator’s Observations: Verified. The complainant pointed out and showed me the area to be void of caulking-

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 13: “front door was not sealed-”

Investigator’s Observations: Verified. Same as item 12 above-

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 14: “refusal to paint...”

Investigator’s Observations: Verified. I observed the project to be void of paint-

Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal....

Tedi Quezada, was a Legal Assistant II for the Registrar and reviewed Complainant’s Recovery Fund claim. Ms. Quezada testified that she reviewed the Directive from the Registrar that had been issued, Judge Moses-Thompson’s Decision regarding the underlying complaint, as well as bids submitted by Complainant in calculating Complainant’s actual damages.

Ms. Quezada testified that Complainant had supplied three bids, as follows: Global Construction Management in the amount of $38,780.00, Sampson Roofing in the amount of $11,000.00, and Serious Home Concepts in the amount of $20,200.00. Ms. Quezada testified that she had Steve Hammons, the Investigator in the underlying action, review the bids to help determine if the bids were sufficient to correct the work. Ms. Quezada testified that her response from Investigator Hammons was as follows,

In reviewing these three bids it appears all three would cover the work needed. Each one of these by themselves do not cover all the issues that were included in the Written Directive. This residence has significant drainage issues with the sidewalk draining towards the residence, and the garage walls having stucco to the sidewalk, and a roof leak at the entry way caused the drywall damage inside.

In addition, Ms. Quezada testified that Complainant had met the requirements for a Recovery Fund payout because Complainant owned the property and lived in the same, which she verified through review of the Deed.

Further, Ms. Quezada testified that Complainant had requested and received a payout from Respondent’s bond company, in the amount of $9,000.00.

Based upon all of the information, Ms. Quezada concluded that after combining all three bids to cover the work needed, the total Compensable Bid amount was $64,380.00. Thus, Ms. Quezada explained the calculation for Complainant’s actual damaged as follows:

Original contract price: $20,000.00

Less payment on contract: - $10,000.00

Total unpaid balance $10,000.00

Total Compensable Bid Amount $64,380.00

Less the unpaid balance on contract: - $10,000.00

Compensable “Actual Damages”: $30,000.00

Ms. Quezada explained that while the actual compensable damages were initially calculated at a greater amount than $30,000.00, the maximum individual award amount was $30,000.00 per statue. Therefore, Ms. Quezada issued the Notice of Administrative Award accordingly.

Carlos Reyes testified on behalf of Respondent. He testified that the project was a simple rebuild, and was under budgeted, and that the bids provided by Complainant were not “apples to apples”, as the payout was excessive compared to what Respondent was hired to do.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides that “[a]n 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.”

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.”

Respondent had an opportunity to finish and/or correct his work on Complainant’s house, and failed to do so following the written directive from the Registrar.

Respondent also failed to present any persuasive evidence as to how he determined the bids used by the Registrar to determine the amount of the award were too high and/or how it was not substantially similar to complete the repairs.

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 $30,000.00.

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 $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, November 14, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Pink Restoration LLC

[email redacted]

Mona Baskin

[email redacted]

Joan Mizzell

[email redacted]

By: OAH Staff