ALJDEC decisions subject to certification as final

2022A-08327-RFA-LS-ROC · Registrar of Contractors · 2023-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Larry A Esrick,

COMPLAINANT

Artificial Grass Masters LLC

License No. ROC 285231,

RESPONDENT

No. 2022A-08327-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 5, 2023

APPEARANCES: Assistant Attorney General Westley Cox appeared on behalf of the Arizona Registrar of Contractors. Greg Davis, Esq. appeared on behalf of Complainant Larry Esrick. Joshua Apodaca appeared on behalf of Respondent Artificial Grass Masters LLC.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 285231 to Respondent.

On or about September 20, 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)(3), namely of Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. § 32-1154(A)(22).

Respondent failed to file a timely answer to the Citation. No administrative hearing was held because more than ten days had elapsed since service of the Citation, and under Ariz. Rev. Stat. § 32-1155(C) Respondent’s failure to answer within the time prescribed was deemed an admission.

On or about January 10, 2023, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a two day suspension.

On or about February 1, 2023, Respondent’s bond company issued a Final Determination in which they rejected Complainant’s claim.

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 3 different contractors that Complainant had received to correct the project. The lowest bid was from Elite Turf for a total cost of $22,482.90. Complainant also submitted checks establishing that he had paid Elite Turf $22,000.00 to complete the work.

The Registrar issued a Notice of Claim for Administrative Award, finding that the original contract price was $21,800.00, which was paid in full by Complainant and concluding that Complainant’s actual damages were $22,000.00. Respondent requested a hearing, believing the payout was too high. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

The Registrar assigned the claim to Erin Johnson, Legal Assistant II at the Registrar.

Hearing was held on June 29, 2023.

Hearing Evidence

The 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 9, 2022.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint #1 Contractors crews caused irreparable damage to artificial turf and yard looks horrible and is unsafe in my opinion for my dogs and grandchild

Inspector’s Observation: I verified excessively visible seams. Every seam is open with large gaps.

• Respondent shall correct by the appropriate means.

Governing Rule: Violation of Any Rule Adopted By the Registrar 32-1154 A-3 Namely Rule R4-9-108.

All errors contained in original.

Erin Johnson, testified that she reviewed the Directive from the Registrar that had been issued, the Final Administrative Decision and Order regarding the underlying complaint, Complainant’s rejected claim from Respondent’s bond company, Complainant’s revocable trust documents, and bids submitted by Complainant in calculating Complainant’s actual damages. Ms. Johnson concluded that the lowest bid for the installation of artificial turf was appropriate.

Respondent attempted to litigate the factual allegations of the underlying complaint. Respondent contended the determination that the turf needed to be replaced and not be repaired was incorrect.

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.

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.”

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

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 $22,000.00.

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 $22,000.00.

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.

-54864001

001

-137160-45720000Done this day, July 19, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Larry A Esrick

[email redacted]

Artificial Grass Masters LLC

[email redacted]

Greg R. Davis, Esq.

Davis Limited, PLLC

[email redacted]

By: OAH Staff