ALJDEC

00F-RF0190-ROC · Registrar of Contractors · 2000-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 4, 2000. APPEARANCES: Doran C. Rice, Complainant. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Doran C. Rice has established that he was damaged by Respondent’s violation of a statute and rule governing licensed contractors when Respondent poured a large driveway not in a workmanlike manner. Respondent’s license has been revoked, and Mr. Rice has timely applied for a pay out from the Residential Contractor’s Recovery Fund. Therefore, the Registrar of Contractors should pay out to Mr. Rice the amount of his lowest bid to repair the driveway. FINDINGS OF FACT 1. Doran Rice hired Tyconcrete, Inc., the Respondent, to pour a cement driveway at his home. The agreed-upon contract price was $4,276.00 and the job was done on February 19, 1998. Mr. Rice paid $500 down on February 18, 1998 and the remaining amount on February 19, 1998. 2. A crack appeared in the cement the day after the job was done. It continued to crack and also showed many flaws such as uneven edges, pits and marks in the finish and an uneven surface. Although the owner of Respondent agreed to come and make repairs, he never did. 3. Mr. Rice started to file a Complaint with the Registrar of Contractors regarding the workmanship on the project but was told that Respondent was no longer licensed. Instead, he filed a request for a pay out from the Recovery Fund on November 12, 1999. 4. Mr. Rice obtained three bids to replace the driveway. The least of the bids was for $8,965.00. A Registrar of Contractors Inspector inspected the driveway and recommended pay out from the Recovery Fund in that amount. 5. Although the start of the hearing was delayed by 15 minutes, Respondent did not appear and did not telephone the Office of Administrative Hearings prior to the start of the hearing. The Registrar of Contractors Inspector also could not attend. 6. Registrar of Contractors records reflect that Respondent’s license was revoked on August 27, 1998. CONCLUSIONS OF LAW 1. The Registrar of Contractors is authorized to release payment from the Recovery Fund to person’s injured by violations of the statute or rules pertaining to licensed residential contractors in an amount limited to actual damages (not to exceed $20,000) suffered as a direct result of the contractor’s violation. A.R.S. §32-1132(A). 2. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 3. In this case, the Complainant has established that he was damaged by a violation of A.R.S. §32-1154(A)(3), violation of any rule adopted by the registrar, and A.A.C. R4-9-108, requiring all work to be performed in a workmanlike manner. Pictures of his driveway, Complainant’s Exhibit 1, show that the concrete was not poured in a workmanlike manner and needs to be replaced. Therefore, the Complainant is entitled to receive a pay out from the Recovery Fund in the amount of his lowest bid, $8,965.00.

RECOMMENDED ORDER Based upon the foregoing, I recommend that the Registrar of Contractors pay out $8,965.00 from the Residential Contractor’s Recovery Fund to Doran C. Rice for the replacement of his driveway due to poor workmanship by Respondent. Done this day, August 4, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826