ALJDEC decisions subject to certification as final

2023A-04470-RFA-LS-ROC · Registrar of Contractors · 2024-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nathaniel and Luz Evans,

COMPLAINANT

Esplendor's Home Building LLC

License No. ROC 219516,

RESPONDENT

No. 2023A-04470-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 2, 2024

APPEARANCES: Complainant Nathaniel and Luz Evans appeared on their own behalf. Luis Renteria appeared via Google Meet on behalf of Respondent Esplendor’s Home Building LLC. Arizona Assistant Attorney General, Mona Baskin appeared via Google Meet on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Registrar of Contractors Exhibits 1-7.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 219516 to Respondent.

On or about April 17, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the installation of brick wall.

As a result of the workmanship complaint, on July 31, 2023, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b); and A.R.S. § 32-1154(A)(22).

Respondent failed filed a timely answer to the Citation.

On August 23, 2023, the Registrar issued a Final Administrative Decision and Order (Default) finding violations and imposing a two day suspension and a $500.00 civil penalty.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s was entitled to an amount of $30,000.00 from the Fund. Respondent timely requested a hearing on or about December 11, 2023. 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 February 2, 2024.

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. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 23, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities and the HOA prior to making corrections listed in this Directive.

Complaint Item 1a: “Retaining wall is cracking from top to bottom in multiple places...”

Investigator’s Observations: Verified. The complainant pointed out several areas where the described conditions are present. The cracks observed extend across the face of the block lending to a possible structural issue. The respondent should determine the cause of the crack and make the appropriate repairs.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “The contractor did not acquire permits from Santa Cruz County or the ASPOA before building the wall.”

Investigator’s Observations: Verified. No permits have been obtained from Santa Cruz County Building Department or the Aliso Springs Property Owners Association. The respondent confirms this allegation.

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities and the HOA prior to making corrections listed in this Directive.If the local jurisdiction or the HOA finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Governing Rule: A.R.S. § 32-1154(A)(2)(b): Departure from or disregard of: (b) A building code...

Complaint Item 3: “The wall is not compliant with the ASPOA guidelines.”

Investigator’s Observations: Verified. The wall has been constructed beyond the guidelines set forth by the HOA. The respondent confirmed they are fully aware of the building guidelines of the HOA. The Respondent is to ensure the wall meets the guidelines and approval of the HOA.

Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1b: “... and the quality of the brick is very poor.”

Investigator’s Observations: This allegation is NOT verified. No written documentation exists that specifies the type of brick to be used for the project. I am unable to make a determination of the quality based on this allegation alone.

Governing Rule: N/A.

Shaquira Adebule, was a Legal Assistant II for the Registrar and reviewed Complainant’s Recovery Fund claim. Ms. Adebule testified that she reviewed the Directive from the Registrar that had been issued, the Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages.

Ms. Adebule testified that Complainant submitted two bids as follows: Valle Verde Landscape and Mason in the amount of $73,250.00, and Rambo Landscaping in the amount of $54,925.00. Ms. Adebule noted that both bids contained work which was not included in the original Directive, so she reduced Valle Verde’s bid to $48,520.00, and Rambo’s bid to $47,500.00, to better reflect the work needed to rebuild the wall.

Ms. Adebule testified that she had Gregory Johndrow, the Investigator or the underlying action, review the bids to help determine if the bids were sufficient to correct the work. Ms. Adebule testified that Mr. Johndrow said both bids appeared to be “in line with the directive requirements with the exceptions in the areas you noted from each bid.”

In addition, Ms. Adebule testified that Complainant had met the requirements for a Recovery Fund payout because he owned the property and lived in the same, and she verified this through review of the Deed and the Santa Cruz County Assessor’s Office records. Further, Ms. Adebule testified that Complainant had requested a payout from Respondent’s bond company, however he was denied the same.

Baes upon all of the information, Ms. Adebule concluded that a payout from the Fund in the amount of the $30,000.00 statutory maximum was appropriate and issued her Notice of Administrative Award accordingly.

Nathaniel Evans testified on his own behalf. He testified that the wall was not built to the design and would need to be demolished and rebuilt.

Luis Renteria testified on behalf of Respondent and acknowledged that he did not obtain a permit for the wall and did not construct the wall to comply with Complainant’s Homeowners Association requirements. Mr. Renteria also testified that the wall would have to be removed and rebuilt, but believed that if he did performed the construction it should only cost $15,000.00. Mr. Renteria testified that he came up with this amount from asking some of his subcontractors what the cost would be.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides that “[a]n 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.”

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.”

Respondent had an opportunity to correct the wall following the written directive from the Registrar and failed to do so.

Respondent also failed to present any credible evidence as to how he determined the cost to be around $15,000.00.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. However, because that amount is greater that what the statute allows, Complainant is 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, Complainant 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, February 20, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Esplendor's Home Building LLC

[email redacted]

Nathaniel and Luz Evans

[email redacted]

Registrar of Contractors

[email redacted]

By: OAH Staff