ALJDEC - Licensing
2022A-11782-RFA-LS-ROC · Registrar of Contractors · 2023-09-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kandra Churchwell,
COMPLAINANT,
v.
Leak Stoppers LLC,
License No. ROC 321310,
RESPONDENT.
No. 2022A-11782-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 7, 2023
APPEARANCES: Complainant Kandra Churchwell appeared on her own behalf. Qualifying Party Todd Evans appeared for Respondent Leak Stoppers LLC. Assistant Attorney General Mona Baskin represented the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
On August 7, 2018, the Arizona Registrar of Contractors (Registrar) issued Leak Stoppers LLC License No. 321310 to Respondent.
The Registrar received a Complaint from Complainant, a homeowner, against Respondent regarding Respondent having erroneously demolished Complainant’s roof on December 19, 2022 through a mix-up on the home address at which Respondent was to be performing construction activity.
On January 4, 2023, the Registrar dismissed Complainant’s Complaint because there was no written contract with Respondent calling for compensation to be paid to Respondent for any roofing work.
However, on January 26, 2023, the Registrar then filed, on its own action, a Citation and Complaint against Respondent based on the allegations set forth in Complainant’s Complaint and other determined issues with Respondent’s renewal application.
Regarding the work at Complainant’s home, the Registrar cited Respondent for violation of A.R.S. section 32-1154(A)(3), namely A.A.C. Rule 4-9-108.
Thereafter, Respondent entered into a Consent Order with the Registrar ending the administrative process on the Registrar’s Citation and Complaint. Respondent acknowledged the construction actions as asserted in Complainant’s Complaint. Additionally, Respondent acknowledged and admitted to the contracting violations as cited by the Registrar. Further, Respondent accepted as discipline the Registrar’s imposition of a 5-day license suspension.
On March 21, 2023, Complainant filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of repairing/replacing her roof. Complainant indicated therein that a contractor had been hired to do the repair work at the price of $7,592.39. Complainant itemized the repair costs as follows: $7,200.00 to All American Property and Development LLC (All American) for roofing; and, $392.39 to Grant Poe for a microwave damaged by “a worker.” Complainant included an Invoice for $7,200.00 dated December 26, 2022 from All American; the company address was stated to be 11201 E. Pantano Trail in Tucson.
Complainant had attempted to recover monies from Respondent’s bond; however, she was advised by the bonding company that Respondent’s license bond did not cover the consequential damages of Respondent having damaged her roof. The bonding company suggested she may be able to recover damages from a liability insurer, either Respondent’s or her own.
The Registrar requested additional information from Complainant, in proof of payment and whether Mr. Poe was a licensed contractor. Complainant responded that Mr. Poe, her handyman, had arranged the work with All American Property and that All American had done the repair work. The Registrar informed Complainant that, without a license, Mr. Poe could not have arranged or hired another contractor to do the work and that the Fund would not be able to pay out on unlicensed work. Complainant responded that Mr. Poe was not there when the work was performed and she had signed off on the work to the “crew” that had done the work. Subsequently, in seeking to demonstrate that All American had done the work, Complainant obtained (through Mr. Poe) another invoice using the same Pantano address but containing Registrar license number 260842 to demonstrate payment to All American in cash.
Based on its investigation, the Registrar found the following: Mr. Poe holds no Registrar licensure as a contractor; Sarah Poe’s residential address is 11202 E. Pantano Trail; All American was originally licensed in 2009 to a Glenn Panagakos at mailing/residential address of 9121 E. Tanque Verde Road and a business address of 11352 E. San Juanito Place; Registrar data led the Registrar to the 2019 All American change of address to a California address; and All American failed to respond to the Registrar in this matter.
On June 28, 2023, the Registrar issued its Notice and Order of Denial of Recovery Fund Claim. The Registrar found that Grant Poe, an unlicensed person/entity had made the repairs and, therefore, the Claim had to be denied pursuant to A.R.S. § 32-1131 et seq., specifically A.R.S. § 1132. The Registrar found that Complainant did not meet all the criteria for eligibility of payout from the Fund; one basic condition is that there must have been a Contract with a licensed residential contractor who was appropriately licensed when the underlying contract was signed, when the first payment was made, or when the underlying work first commenced.
The Registrar subsequently referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.
At hearing, the Registrar presented its supporting evidence regarding the unlicensed status of Mr. Poe and the prior licensed status of All American.
Complainant argued that she had understood Mr. Poe to be working with All American to facilitate the repair work that needed to done immediately because Respondent was not steeping up to do the repairs and her home was at risk. Complainant noted that her understanding was that Mr. Poe was “partnering” with All American and that she had no reason to doubt his integrity. Later, when she reviewed the Registrar information, she saw that All American did have a license and she believed, therefore, she would be able to file for reimbursement from the Fund.
Complainant argued that she had not known of the extent of public information that could have been reviewed regarding licensure at that time but that, even if she had, her roof needed to be repaired immediately. Complainant opined that the Registrar had not held Respondent to comply with applicable contracting laws in regard to Respondent’s actions and her roof.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish that she is eligible for a payout from the Fund 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.”
A.R.S. § 32-1132 provides, in pertinent part, as follows:
C. In order for a claimant to be eligible for an award from the residential contractors' recovery fund, the contractor whose actions damaged the claimant must have been appropriately licensed at one of the following times:
1. The date that the underlying contract was signed.
2. The date that the first payment was made.
3. The date that the underlying work first commenced.
D. For the purposes of this section, "appropriately licensed" means the residential contractor held a valid residential contractor license that was issued pursuant to this chapter and that was not canceled, in inactive status, expired, suspended or revoked.
After review of all the evidence, the Tribunal concludes that Complainant is ineligible for an award from the Fund and her appeal should be dismissed
RECOMMENDED ORDER
Based on the foregoing, it is recommended that Complainant’s appeal be dismissed.
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, September 27, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Cindy Casaus, Interim Director
Registrar of Contractors
c/o Legal Department
[email redacted]
Kandra Churchwell
[email redacted]
Leak Stoppers LLC
[email redacted]
Mona Baskin
Assistant Attorney General
[email redacted]
By: OAH Staff