ALJDEC decisions subject to certification as final

2023A-07484-RFA-LS-ROC · Registrar of Contractors · 2024-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jerry Donald Phillips,

COMPLAINANT

CCB Builders LLC,

License No. ROC 322595,

RESPONDENT

No. 2023A-07484-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 29, 2024

APPEARANCES: Complainant Jerry Phillips appeared on his own behalf. Jose Alestra, Owner and Qualifying Party, appeared on behalf of Respondent. The Arizona Registrar of Contractors was represented by Assistant Attorney General Mona Baskin.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: State’s Exhibits 1 through 7 were admitted. Administrative Notice was taken of State’s Appendix Exhibits A and B.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 322595 to Respondent.

On or about July 4, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to Respondent’s work on his home.

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 A.A.C. R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely A.A.C. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22).

Respondent did not file a timely answer to the Citation. As a result, a Final Administrative Decision and Order (Default) was issued, suspending Respondent’s license for 5 days and ordering a civil penalty of $250.00.

Complainant then filed a claim on October 2, 2023 with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of repairing the project. As part of the claim process, Complainant submitted two bids that Complainant had received for the project.

The Registrar issued a Notice of Administrative Award (Award) on December 29, 2023, finding that Complainant’s actual damages were $30,000.00. Respondent appealed the Award, stating it did not fail to meet industry standards in workmanship and performance, nor was it responsible for storm damage that may have caused shifting and settling. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

The hearing was held on February 29, 2024 via Google Meet.

Hearing Evidence

The written directive from the Registrar specified nineteen items that required correction.

Doug Ulmer, Legal Assistant II for the Fund, testified that he reviewed the contract, the written directive from the Registrar that had been issued, the Final Administrative Decision and Order (Default), and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Ulmer, after conferring with Investigator Corlett, determined that the bid submitted from Redmond Construction for $63,291.61 was appropriate and in line with the original contract and the written directive. Thus, Mr. Ulmer ultimately determined a total of $30,000.00 payable from the Fund was appropriate.

Complainant did not testify.

Respondent provided no relevant testimony, but rather attempted to testify regarding the underlying workmanship.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The purpose of the recovery fund is to provide improved protection for owners and lessees of property who contract for the construction or alteration of residential structures. McMurren v. JMC Builders, 204 Ariz. 345 (App. 2003).

Ariz. Rev. Stat. § 32-1132.01(B) 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 “[m]ay not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines” and “[m]ust be established by bids supplied by or the value of work performed by a person that is licensed.”

Ariz. Rev. Stat. § 32-1132.01(D) provides that “[t]he maximum individual award from the residential contractors' recovery fund is $30,000. An individual claimant may not be awarded more than the maximum individual award.”

Respondent filed an appeal of the Registrar’s recommended payout from the Fund. As such, Respondent bears the burden to establish, by a preponderance of the evidence, that the recommended payout was inappropriately high.

“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 failed to identify why the proposed payout was inappropriately high.

Therefore, after review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflects Complainant’s actual damages. The evidence of record supports an award to Complainant in the amount of $30,000.00, all of which shall be chargeable against Respondent and persons on the license as set forth in Ariz. Rev. Stat. § 32-1139(B).

Accordingly, 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, March 4, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jerry Donald Phillips

[email redacted]

CCB Builders LLC

[email redacted]

By: OAH Staff