ALJDEC decisions subject to certification as final

2023A-13009-RFA-LS-ROC · Registrar of Contractors · 2025-07-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Howard Kesselman,

COMPLAINANT

Lewis House Solutions LLC

DBA: Prescott Window & Door,

License No. ROC 299139,

RESPONDENT

No. 2023A-13009-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 19, 2025

APPEARANCES: Complainant Howard Kesselman appeared via Google Meet on his own behalf. Rick Lewis, appeared via Google Meet on behalf of Respondent Lewis House Solutions 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 Contractor’s Exhibits 1-10 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (Registrar) issued License No. 299139 to Respondent Lewis House Solutions LLC.

On or about November 10, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect installation of windows and doors at his primary residence.

As a result of the workmanship complaint, on July 16, 2024, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and A.R.S. § 32-1154(A)(22).

Respondent timely answers and a hearing was held on September 27, 2024.

On October 11, 2024, Administrative Law Judge Jenna Clark issued her recommended decision, and on October 29, 2024, the Registrar issued a Final Administrative Decision and Order, ordering that Respondent’s license be suspended for 2 business days.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover $2,910.00 on or about February 4, 2025.

The Registrar issued a Notice of Administrative Award on April 14, 2025, finding that Complainant’s actual damages were $2,705.00. Respondent timely requested a hearing on or about April 24, 2025. 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 June 19, 2025.

The Directive from the Registrar specified that Respondent was to remedy several items on the project as follows:

Compliance Item: 1 - ENTRY DOOR IS DAMAGED

Investigator’s Observation: There appears to be a slight gouge on the edge of the door where the locking mechanism is.

There is also a 'dent' on the outside trim at the handle side of the door.

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: 2 - IMPROPERLY INSTALLED

Investigator’s Observation: The door is slightly out of plumb north/south at one end of the door and at the other end is slightly out of plumb in the opposite direction resulting in the installation being slightly twisted.

Additionally, the installation is slightly out of square and is racked.

Jamb trim fastener holes are filled with the material that doesn't closely match the color of the trim and that material if not flush with the top of the trim.

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: 4 - SIDELIGHT WINDOWS ARE SCRATCHED

Investigator’s Observation: This is as stated. It was relayed that when the protective plastic taped on the door was removed, the sidelight glass was damaged.

That is consistent with what I observed.

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 - DOOR HITS STRIKEPLATES AND IS DAMAGED

Investigator’s Observation: This is the slight gouge referred to in Item 1

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...

Meridith Bell, was a Legal Assistant II for the Registrar and reviewed Complainant’s Recovery Fund claim. Ms. Bell testified that she reviewed the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages.

Ms. Bell testified that Complainant supplied an invoice from Moloney Construction who performed the repair work.

In addition, Ms. Bell testified that Complainant had met the requirements for a Recovery Fund payout because he owned the property and lived in the same, and verified this through review of the Warranty Deed. Further, Ms. Bell testified that Complainant paid a total of $51,490.64, and had not received a payout from Respondent’s bond company.

Based upon all of the information, Ms. Bell performed the following calculation:

Original Contract and change order price: $51,490.64

Less Payment on contract: - $51,490.64

Total unpaid balance: $0.00

Valid expenditures to complete/repair the project: $2,705.00

Less the unpaid balance on contract: - $0.00

Compensable “Actual Damages”: $2,705.00.

Mr. Lewis testified on behalf of Respondent and he stated that he felt used by Complainant and was frustrated that he did not receive notice of the jobsite inspection. Mr. Lewis testified too that the cost to repair by Moloney was not outrageous.

Mr. Kesselman testified that he agreed with the recovery fund award.

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 work following the written directive from the Registrar and failed to do so.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $2,705.00.

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 $2,705.00.

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, July 1, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Howard Kesselman

[email redacted]

Lewis House Solutions LLC

[email redacted]

Mona Baskin Esq.

Office of the Attorney General

[email redacted]

By: OAH Staff