ALJDEC

00F-RF0198-ROC · Registrar of Contractors · 2000-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2000 APPEARANCES: Plaintiff was represented by his attorney, Jason Ebe and Defendant failed to appear. In addition, there was no appearance by the Contractors’ Recovery Fund. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Defendant’s contracting license has been previously revoked by final Order of the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violation of the State’s contracting laws which gave rise to the instant claim for damages.

2. The Registrar of Contractors has received advance notification of the existence and amount of the above named Plaintiff’s claim for an administrative payout from the Contractors’ Recovery Fund and did not oppose the requested payout.

3. This hearing was convened following Defendant’s express request therefor. But for Defendant’s request for the hearing, the instant hearing would not have been convened and the Contractors’ Recovery Fund would have paid the requested payout.

4. Plaintiff seeks to recover the sum of $19,000.00 from the Contractors’ Recovery Fund.

5. Defendant’s failure to appear for the scheduled hearing is deemed to be tantamount to its implied withdrawal of any objection to the requested payout.

6. Evidence of record demonstrated that Plaintiff has received a Superior Court judgment against Defendant in the amount of $91,968.87 and that said judgment was for damages that Plaintiff sustained as a direct result of Defendant’s failure to complete the construction project in question in a timely and proper workmanlike manner.

7. The above-described judgment was entered by the Court on January 19, 2000 and there was no evidence that said judgment was ever appealed by Defendant. The prior court decision is binding upon the parties and this Tribunal by the principles of res judicata.

8. Plaintiff averred at the instant hearing that he has previously recovered the sum of $1,000.00 from Defendant’s bond. 9. Based upon the entire file in this matter and the undisputed evidence produced at the hearing, it is found that a proper and reasonable award payable to Plaintiff from the Contractors’ Recovery Fund is $19,000.00.

10. It should be noted that the Registrar’s file in this matter contains a document entitled “Response to Notice to Contractor of Claim for Administrative Payout” (“Response”). This document was filed by Defendant’s attorney subsequent to receipt of notice that the Contractors’ Recovery Fund intended to pay Plaintiff the sum of $19,000.00.

11. In the above-described Response, Defendant indicates that its qualifying party, Michael Price, has filed a Chapter 7 bankruptcy action, wherein Plaintiff is listed on one of the schedules filed with the bankruptcy action. There is no mention in the Response that Defendant named herein (the corporate entity that holds the Class K-11 license) has also filed a Chapter 7 bankruptcy action. Apparently the Registrar of Contractors determined that there is no automatic stay in place which prohibits the instant claim from moving forward against the Defendant corporate entity named herein

CONCLUSIONS OF LAW

1. Plaintiff is determined to be a “person injured” as that term is defined in A.R.S. § 32-1131 (3).

2. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award proper payment to Plaintiff from the Contractors’ Recovery Fund pursuant to A.R.S. § 32-1154(E).

3. The within record supports an award to Plaintiff in the amount of $19,000.00.

RECOMMENDED ORDER

In view of the foregoing, it is recommended on the effective date of the Order entered in this matter that the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to Plaintiff in the amount of $19,000.00, as long as the Registrar is fully satisfied that the bankruptcy action filed by Defendant’s qualifying party, Michael Price, does not prohibit such a payout . Done this day, August 17, 2000

______________________________________ Mark A. Silver 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