ALJDEC decisions subject to certification as final

2022A-11070-RFA-LS-ROC · Registrar of Contractors · 2024-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard Olander,

COMPLAINANT

Casey Daniel Rodman

DBA: Desert Dynamics Construction,

License No. ROC 324291,

RESPONDENT

No. 2022A-11070-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 19, 2023

APPEARANCES: Richard Olander appeared on his own behalf. Mona Baskin, Esq., Assistant Attorney General, represented the Registrar of Contractors. Casey Daniel Rodman appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 324291 to Casey Daniel Rodman DBA: Desert Dynamics Construction (Respondent).

On or about December 6, 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(A), and Ariz. Rev. Stat. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In the May 30, 2023, Decision, Administrative Law Judge Adam Stone considered Respondent’s arguments and concluded, among other things, that “[t]here was a ding on the kitchen door, the grout was missing and/or coming out from the tile floor, and paint was coming off the exterior of the home. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).”

On or about June 20, 2023, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a twenty day suspension of Respondent’s license.

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 was required to submit a minimum of two bids per issue. There were three issues – kitchen cabinet face, grout, and paint. Complainant submitted to the Registrar nine bids in total across all three issues.

The Registrar issued a Notice of Claim for Administrative Award, finding that Complainant’s actual damages were $8,154.10. 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 December 19, 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. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Kitchen drawer front damaged prior to taking possession

Investigator’s Observation: Kitchen door has a ding about the size of a quarter. This was noted upon move in.

Respondent to repair by appropriate means.

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 - Grout keeps coming out of the floor tile

Investigator’s Observation: Upon inspection there are several areas were grout in missing and/or coming out from the tile floor.

Respondent to repair by appropriate means.

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 - Paint coming off of exterior of home, primarily the West side

Investigator’s Observation: Stucco texture falling off exposing unpainted stucco. Respondent shall identify problem and repair/fix by appropriate means.

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.

Eric Ulinger, Claims Reviewer for the Fund, testified that he reviewed the Directive from the Registrar, Judge Stone’s Administrative Law Judge Decision regarding the underlying complaint, and bids submitted by Complainant when he calculated Complainant’s actual damages. Mr. Ulinger determined that the lowest bids from H & H Development Inc., in the amount of $4,675.00 to correct the stucco and painting issues, Tile Assassins Killing It LLC, in the amount of $3,150.00 to correct the floor grout issues, and Prime Cabinetry in the amount of $329.10 to supply the damaged kitchen cabinet face were appropriate. Mr. Ulinger concluded, the sum of the three accepted bids which totaled $8,154.10 was appropriate.

At hearing, Respondent attempted to relitigate the underlying complaint and argued that there should be no administrative pay out.

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 $8,154.10.

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 $8,154.10.

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, January 5, 2024.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted on January 8, 2024, by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Casey Daniel Rodman

DBA: Desert Dynamics Construction

[email redacted]

Richard Olander

[email redacted]

Registrar of Contractors

[email redacted]

By: OAH Staff