ALJDEC decisions subject to certification as final

2023A-04452-RFA-LS-ROC · Registrar of Contractors · 2025-07-11

Cheryl Stevens

COMPLAINANT,

Mitchell's Remodeling, LLC

License No. ROC 333830,

RESPONDENT.

No. 2023A-04452-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 23, 2025

APPEARANCES: Robert D. Stachel, Esq. appeared on behalf of Cheryl Stevens (Complainant). Assistant Attorney General Mona Baskin appeared on behalf of the Arizona Registrar of Contractors (Registrar). Vincent Mitchell appeared on behalf of Mitchell’s Remodeling, LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: The Registrar’s Exhibits 1 through 11.

Complainant’s Exhibit A. Respondent’s Exhibit A.

_____________________________________________________________________

FINDINGS OF FACT

1. On May 12, 2025, the Registrar issued a Notice of Hearing setting the above-entitled matter for hearing on June 19, 2025. The May 12, 2025 Notice of Hearing provided that the issues set for determination were Complainant and Respondent’s appeals of the Registrar’s determination regarding Complainant’s Recovery Fund Claim.

2. The hearing date was continued and a hearing was held on June 23, 2025.

3. At the hearing on June 23, 2025, Complainant testified on behalf of herself. The Registrar presented the testimony of its legal assistant, Shaquira Adebule. Vincent Mitchell, the owner of Respondent, testified on behalf of Respondent.

4. On December 26, 2022, Complainant and Respondent entered into a residential remodeling contract, wherein Respondent agreed to install exterior siding, trim, and to replace dry rotted areas of the fascia and soffit in Complainant’s home located at 1932 S. Wardle Rd, Sierra Vista, AZ 85635.

5. On or about January 24, 2023, Complainant and Respondent agreed to an addendum to remove damaged subflooring.

6. The original contract price was $16,154.67 and the addendum was $14,500.00.

7. Complainant paid $23,694.67 to Respondent.

8. On April 16, 2023, Complainant filed a complaint with the Registrar alleging poor work on the part of Respondent

9. The Registrar’s investigator conducted a jobsite inspection on May 23, 2023. A directive was issued requiring Respondent to make specific repairs on May 23, 2023. The May 23, 2023 Directive provided, in relevant part, as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 9th, 2023.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - In the master bedroom, the newly installed subfloor

flexes excessively. It is wavy and grossly out of level. This makes it unsuitable

for Pergo laminate flooring installation.

Investigator’s Observation: Floor has a large bow in the middle of the

master bedroom. Floor is out of level at walls approximately 2 1/4 Inches.

Respondent was aware of the floor being out of level. A previous job contract

just prior to this flooring job for siding repair done by the Respondent stated "Ensure home is level". Regular OSB plywood was used instead of tongue and

groove. There is flexing at the joints that are not supported.

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: 5 - In the master bedroom, there is a excessive gap along

the room's perimeter - between the wall and subfloor up to 1 inch. Daylight was

visible because of no support blocking underneath. Contractor applied a

caulk/paste over this gap

Investigator’s Observation: It appears that construction adhesive was

used along the outside edge of the flooring in the master bedroom.

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: 6 - On the exterior, the vents were not reinstalled in the

soffit. Contractor stated that "they are not needed

Investigator’s Observation: Soffits on South, East and North were

replaced. There are vents on the unreplaced West section of the home. It would

be industry standard to install soffit vents to match existing soffits.

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.

10. Respondent failed to comply with the directive.

11. A citation was issued to Respondent that ultimately resulted in discipline of Respondent’s license on February 13, 2024.

12. The Registrar adopted a Recommended Decision from Administrative Law Judge Stone (Judge Stone), wherein Judge Stone found that Respondent did not violate Ariz. Rev. Stat. § 32-1154(A) (22) because Complainant denied Respondent reasonable access to her home to make the repairs listed in the Directive. Nonetheless, Administrative Law Judge Stone found that Ariz. Rev. Stat. § 32-1154(A) (3) and recommended a one day. Respondent did not file an appeal of the Order.

13. On July 15, 2024, Complainant filed a Residential Recovery Fund Claim. Complainant submitted bids from Diversified Building and Development LLC and Prestige Remodeling and Restoration, LLC, in support of the Claim.

14. The Registrar assigned Ms. Adebule to review the Claim. Wes Ellington, an investigator for the Registrar, informed Ms. Adebule that the work items in the bids from both contractors were within the scope of the Directive. Ms. Adebule testified that the Registrar chose the bid from Diversified Building and Development LLC because it was the lower of the two bids submitted by Complainant.

15. In review of the Claim and all supporting documents, it was determined that the itemized bid from Diversified Building and Development LLC, License No. ROC 319014, in the amount of $21,950.00 included the necessary repairs to comply with the Directive. Ms. Adebule chose the bid from Diversified Building and Development LLC because it was the lowest bid that appropriately addressed the items listed in the Directive.

16. Ms. Adebule calculated Complainant’s actual damages by subtracting the amount owing on the contract form the bid Diversified Building and Development LLC. Ms. Adebule calculated that the amount left owing on the contract was the amount of the contract, plus the addendum, less the payments made from Complainant to Respondent. The amount left owing on the contract was s $6,960.00. Ms. Adebule subtracted $6,960 from the Diversified Building and Development LLC in the amount of $23,694.67 and determined that Complainant’s actual damages were $14,990.

17. On April 4, 2025, the Registrar notified Complainant through a Notice of Administrative Award that she was eligible for a payout for the Recovery Fund in the amount of $14,990.

18. Complainant and Respondent filed an appeal regarding the determination.

19. The matter was refer to the Office of Administrative Hearings for an evidentiary hearing.

20. At hearing, Complainant stated at hearing that she obtained an updated bid from Diversified Building and Development LLC a year after she obtained the first bid that was submitted from the Registrar. The second bid was for the amount of $25,750.00. Complainant inquired with Diversified Building and Development LLC regarding the increased bid. Diversified Building and Development LLC told Complainant that the bid increased due to increase in the cost of labor and materials. Complainant did not submit an updated bid from Prestige Remodeling and Restoration, LLC.

21. Mr. Mitchell contended that the selected bid exceeded the scope of his contract with Complainant. Additionally, Mr. Mitchell Complainant should not receive a payout from the fund because she denied him reasonable access to make the repairs listed in the Directive. Furthermore,.

22. Administrative Notice is taken of the Registrar’s public website on July 11, 2025. According to the Substantive Policy Statement 2017.01 on the Registrar’s public website, the Registrar should dismiss a complaint if the homeowner denies access to the contractor to repair its work after the issuance of a corrective work order. The Substantive Policy Statement 2017.01 provides, in relevant part, as follows:

The Denial of Access · “Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.” Source: BB Ewing Property Management v. Khart Management LLC No. 2015- 1168(ALJ Dec. 15:19–25).

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .” 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; 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.”

It is uncontroverted that the Registrar adopted Judge Stone’s finding that Complainant failed to provide Respondent with the opportunity to cure its work. However, discipline was imposed in that matter and Respondent was notified of his right to appeal the decision. However, Respondent did not file an appeal. The Administrative Law Judge concludes that Complaint is eligible for a payout from the fund because suspension was imposed based on the contractor’s poor work.

The Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainants’ actual damages. Respondent failed to establish that payout recommended by the ROC was based upon estimates for work that was beyond the scope of the Directive. Furthermore, the award appears to properly remedy the workmanship violations for which Respondent was responsible. Although Complainant provided evidence to show that Diversified Building and Development LLC is currently charging an increased amount to repair the work, Complainant did not submit bids from any other contractors. Respondent and Complainant failed to establish by a preponderance of the evidence that the payout of $14,990 was improper or excessive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar’s April 4, 2025 Notice of Administrative Award be affirmed.

It is further 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 $14,990.

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 11, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Robert D. Stachel, Jr.

Stachel & Associates , P.C

[email redacted]

Cheryl Stevens

[email redacted]

Mitchell's Remodeling, LLC

[email redacted]

By: OAH Staff