ALJDEC decisions subject to certification as final

2022A-11154-RFA-LS-ROC · Registrar of Contractors · 2024-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Allison and Rick Coker,

COMPLAINANT

NewBuild LLC

License No. ROC 290625,

RESPONDENT

No. 2022A-11154-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 26, 2024

APPEARANCES: Complainants Allison and Rick Coker appeared on their own behalf. Ronald J. Peetz, Manager and Qualifying Party, appeared on behalf of Respondent NewBuild LLC. The Arizona Registrar of Contractors was represented by Assistant Attorney General Mona Baskin.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Exhibits 1 through 8

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 290625 to Respondent.

On or about December 5, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work (the workmanship complaint) with respect their new home built by Respondent.

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 her Decision, Administrative Law Judge Tammy L. Eigenheer considered Respondent’s arguments and concluded that Complainant established Respondent had violated Ariz. Rev. Stat. § 32-1154(A)(3) and (22) with respect to the paver driveway that had not been corrected by Respondent. The Administrative Law Judge recommended a three-day suspension of Respondent’s license.

On or about May 24, 2023, Respondent notified the Office of Administrative Hearings that it wished to accept the recommended decision issued by the administrative law judge.

On or about May 25, 2023, the Director of the Office of Administrative Hearings certified the Administrative Law Judge Decision.

As a result of the certification, Respondent’s license was suspended for three days.

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 Administrative Payout, finding that Complainant’s compensable actual damages were $30,000.00. 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.

A hearing was held on April 26, 2024.

Hearing Evidence

The Directive from the Registrar specified that:

Compliance Item: 1 - “There are several areas of the driveway that are sinking”

Investigator’s Observation: Verified. Upon inspection at this JSII observed for:

-Excessive gap between pavers in field: pavers with a gap greater than 3/16” in field pavers

-Excessive deviations, dips or sags over short distances: areas of deviations, dips or sags over short distances in multiple areas to include West side of driveway approaching house, approaches to both garage doors, and in area in front of garage in turnaround area.

Tedi Quezada, Legal Assistant for the Fund, testified that she reviewed the Directive from the Registrar that had been issued, Judge Eigenheer’s decision regarding the underlying complaint, and bids submitted by Complainants in calculating Complainants’ actual damages. Ms. Quezada concluded that the lowest bid of 42,632.10 for the removal and replacement of the paver driveway was an appropriate reflection of the cost to repair Respondent’s work. Because payouts from the Fund are limited to $30,000.00 and Complainants’ damages were in excess of that, Ms. Quezada approved a payout of $30,000.00 to Complainants.

Ms. Quezada did consult with Wes Ellington, Assistant Chief of Investigations, who indicated that it was not uncommon for subsequent contractors to recommend removal and replacement for certain projects because they were unwilling to accept responsibility for the original contractor’s poor work.

Respondent questioned the need to completely remove and replace the paver driveway as the issues that had not been corrected were relatively minor.

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 Complainants’ actual damages. Accordingly, Complainants are 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, Complainants 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.

-54864001

001

-137160-45720000Done this day, May 16, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

NewBuild LLC

[email redacted]

Allison Coker

[email redacted]

Registrar of Contractors

[email redacted]

By: OAH Staff