ALJDEC decisions subject to certification as final

2023A-03612-RFA-LS-ROC · Registrar of Contractors · 2025-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fred and Karen Haider,

COMPLAINANT,

JC Stone LLC,

License No. ROC 332078,

RESPONDENT.

No. 2023A-03612-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 28, 2024

APPEARANCES: Karen Haider appeared on behalf of herself and Fred Haider. Attorney Samantha Ansinelli represented JC Stone LLC. The Arizona Registrar of Contractors was represented by Assistant Attorney General Mona Baskin.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC Exhibits 1 – 8 plus A and B.

_____________________________________________________________________

FINDINGS OF FACT

Background

The Arizona Registrar of Contractors (Registrar) issued License No. 332078 to Respondent.

On or about March 27, 2023, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, incomplete and poor work regarding the installation of marble tile (Workmanship Complaint).

As a result of the Workmanship Complaint, the Registrar issued a Citation against Respondent charging the following possible violations: A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

The Respondent filed a timely answer to the Citation and, thereafter, the Registrar forwarded the matter to the Office of Administrative Hearings for the conduct of an administrative hearing.

In the Administrative Law Judge Decision dated October 18, 2023, the Administrative Law Judge considered the evidence presented by the parties and the parties’ arguments and concluded as follows: Respondent’s work had departed from the plans or specifications; Respondent’s work was not in conformity with the Registrar’s standards; Respondent’s invoice utilized in the matter did not meet the minimum elements of a contract required by statute; Respondent had contracted outside the scope of his CR-60 Finish Carpentry licensure; and, Respondent had failed to take appropriate actions to complete the directed corrective work.

On or about November 14, 2023, the Registrar issued a Final Administrative Decision and Order affirming the statutory and regulatory violations and imposing a twenty (20) day suspension along with a penalty and the requirement to provide an updated statutory-compliant sample contract.

Complainants subsequently filed a claim (Claim) with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of completing and/or repairing the project. As part of the claim process, Complainants submitted proof of the monies involved in the project, including the contract amount, the payments made to Respondent, the payments made to other companies, individuals, and or suppliers that were required to complete the project.

After review of the Fund Claim and all supporting documentation, on or about August 7, 2023, the Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $8,346.60.

Fund Hearing

On or about August 7, 2023, Respondent requested an administrative hearing, contesting both the underlying workmanship issues previously determined and that the calculated administrative payout did not take into account an amount which Respondent believed had already been provided in compensation to Complainants.

The Registrar referred the Fund Claim matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing which was held on October 28, 2024.

Tedi Quezada, Legal Assistant for the Fund, testified that, in calculating Complainants’ actual damage, she reviewed the Claim file, the Administrative Law Judge Decision regarding the underlying Workmanship Complaint, and the documents, invoices, receipts and payment information submitted by Complainants in support of their Fund Claim.

Based on the reliable supporting documentation, Ms. Quezada determined the project’s total contract price to have been $38,685.70 which included the initial marble cost of $22,584.00 and the installation/mortar cost as $16,101.70. Based on the reliable payment documentation, Complainant had paid $38,685.70 with regard to the project, leaving an unpaid balance of $172.06. Based on the allowable expenditures that had been made to complete and/or repair the work, the documentation demonstrated the allowable amount of $8,518.66. Taking into account the $172.06 unpaid balance on the project/work, Ms. Quezada determined the total actual damages to $8,346.60.

Ms. Quezada could not allow, as compensable, the monies documented for Complainants’ own labor or for debris removal and clean up because those expenses are not actual amounts required for the completion and repair of the tile work.

At hearing, Respondent argued that the total contract price was not $38,685.70 but must be limited to the “contract price” as had been determined in Finding of Fact No. 2 in the Administrative Law Judge Decision, in the amount of “$14,312.03 for the marble, and $1,789.67 for the mortar adhesive.”

At hearing, Respondent withdrew its argument regarding a credit card reversal/credit that Complainants had obtained regarding the supplemental, but unusable, tile they had purchased for the repair work.

The Fund Claim process is dependent, first, on eligibility of the claimant and, second, on the demonstration of “actual damages” suffered by the claimant as a direct result of a licensed contractor’s violation(s), which actual damages is/are the amount necessary to complete or repair the work. The Claim form and supporting documentation must demonstrate “actual damages” for the completion and/or repair of the uncorrected work/project. Thus, the existence of an Administrative Law Judge Decision finding workmanship issues and imposing discipline on a licensed contractor is simply one of the three basic eligibility prerequisites to seeking and possibly obtaining a Fund payout.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 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.

In the instant case, as the moving party, the Respondent bears the burden of proof by a preponderance of the evidence to establish its position that that the proposed payout from the Fund is incorrect.

“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.”

Based on the information provided to the Registrar from Complainants, the Registrar properly determined Complainants’ actual damages. Respondent’s argument fails that the Finding of Fact No.2 in the Administrative Law Judge Decision is the final determination of the “contract” amount. Respondent is taking a portion of the sentence therein out of context and also fails to acknowledge both of Respondent’s own invoices in this matter. The “contract” amount referenced in Finding of Fact No. 2 was clearly and simply for the installation of the tile based on one of Respondent’s invoices. The cost of the tile clearly is a cost associated with the tile project for which Complainants engaged Respondent. Respondent’s own invoice clearly demonstrates that Complainants secured the tile from Respondent at the cost of $22,584.00.

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 $8,346.60.

RECOMMENDED ORDER

Based on the foregoing, it is recommended Respondent’s appeal be denied and, further, 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 $8,346.60.

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 7, 2025.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

Fred Haider

[email redacted]

Samantha Ansinelli

ANSINELLI LAW, PLLC

[email redacted]

By: OAH Staff