ALJDEC

00F-RF0204-ROC-res · Registrar of Contractors · 2000-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2000 APPEARANCES: Plaintiff/Plaintiff Ruth Silovic appeared, representing herself. No qualifying party, owner, or legal representative appeared on behalf of Respondent/Defendant AAA Floyd’s Air Conditioning dba Climate Control Mechanical. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Plaintiff is entitled to an administrative payout award on a claim against the Contractor’s Recovery Fund. Evidence and testimony were presented and, based on the entire hearing record, the following Findings, Conclusions and Recommended Order are made: FINDINGS OF FACT 1. On September 28, 1999, the Arizona Registrar of Contractors (Registrar) issued its Order in the underlying matter, Case 99-2181, wherein Complainant Silovic had filed against Respondent’s air conditioning work at her residence in October 1998. The Registrar adopted (with a name modification) the Administrative Law Judge’s Findings, Conclusions and Recommendation: to suspend Respondent’s Class C-39R License No. 119411 until Respondent tendered payment of $502.46 to Plaintiff and a contingency where Plaintiff would return a defective motor to Respondent. 2. Effective November 9, 1999, Respondent’s Class C-39R License No. 119411 was suspended until Respondent complied with the Registrar’s Order.

3. On November 22, 1999, the Registrar received Plaintiff’s claim for administrative payout from the Contractor’s Recovery Fund (Fund). 4. On December 2, 1999, the Registrar notified Complainant that they had received information indicating that Respondent had filed for Bankruptcy on November 30, 1999, and that Complainant would need to pursue relief of Bankruptcy Court’s Stay Order. On December 8, 1999, the Registrar also notified Complainant that additional documentation was needed of her costs. 5. On January 20, 2000, the Registrar notified Complainant that the Bankruptcy Court had dismissed the bankruptcy and Complainant would no longer need to pursue relief from the Stay Order. 6. In March 2000, Complainant filed a second claim for administrative payout from the Fund, in the amount of $942.46 to compensate for the repair work and new motor needed after Respondent’s work. Complainant documented her expenses in this regard, and the Registrar’s Inspector recommended a payout in the amount of $942.46. 7. On March 31, 2000, the Registrar’s Recovery Fund area received, from John E. Herman, noted to be License Holder, a request for Respondent for a new hearing in Case 99-2181 and a request to deny administrative payout. This request indicated that Respondent had had inadequate legal representation. 8. On April 4, 2000, Registrar issued its Notice to Contractor of Claim for Administrative Payout [Case RF00-0204] in the amount of $942.46.

9. On April 20, 2000, Registrar issued its Notice of Recovery Fund Payout Hearing to the parties. That hearing was set for May 30, 2000. 10. On May 30, 2000, Plaintiff Silovic arrived for the hearing, but Respondent did not arrive nor did any person or legal representative on its behalf. Plaintiff had some information that a John E. Herman had filed for personal bankruptcy on March 20, 2000. However, Plaintiff had no specific information regarding a corporate filing for bankruptcy. 11. At the time of the hearing, the Registrar’s license information for the above captioned corporation showed some bankruptcy filing on May 18, 2000. The hearing was continued to allow Plaintiff the opportunity to seek additional information regarding a possible bankruptcy filing by Respondent, and to seek relief from any Stay order that may have been issued. 12. On June 6, 2000, the Registrar issued its Order closing the matter, for the reason of Bankruptcy Court Stay Order having been filed with the Registrar. 13. On July 24, 2000, the Bankruptcy Court issued its Order lifting its Stay Order after a July 18, 2000 hearing during which Plaintiff sought relief from the Stay Order for purposes of pursuing recovery from the Fund. On July 26, 2000, Plaintiff requested that the Registrar re-open the matter against Respondent. 14. On August 7, 2000, the Registrar issued its Order Re-opening the complaint. On September 14, 2000, Registrar issued its Notice of Recovery Fund Payout Hearing to the parties [Case RF00-0204]. That Notice set the hearing in this matter for December 18, 2000 at 9:00 a.m. in Phoenix, Arizona. 15. At the time of the hearing, Plaintiff Silovic and the Registrar’s Inspector Purchase appeared, but no person appeared on behalf of Respondent. 16. Plaintiff testified regarding the history of the matter, and the repairs that had been necessary to correct Respondent’s work. Plaintiff testified the she is requesting $942.46 in administrative payout from the Fund. 17. The Registrar’s Inspector testified that it was his determination that Respondent had not completed the necessary repair work per the history and that the bills and amounts for repairs were appropriate for $942.46 payout from the Fund. 18. Plaintiff further testified that both John E. Herman and his attorney had been present at the Bankruptcy Court hearing where Mr. Herman heard the Judge grant her relief from the Stay Order. Plaintiff requested that the undersigned take notice that the address for Respondent had not changed. 19. It is undisputed that this claim for payout from the Fund arises out of deficiencies and problems in work performed by Respondent and the necessary repairs thereto. Plaintiffs submitted her cost and expense information which was not shown to be unreasonable. 20. Based on the foregoing, it is adjudicated and determined that the total sum of $942.46 is an appropriate sum to effectively rectify Defendant’s workmanship deficiencies and the problems in the underlying matter. 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 hearing record supports an award to Plaintiff in the amount of $942.46, all of which shall be appropriately chargeable against Defendant and/or persons on the subject license as set forth in A.R.S. §32- 1139(B). RECOMMENDED ORDER In view of the foregoing, it is recommended on the effective date of the Registrar’s Order in this matter that the Registrar commence and finalize payment procedures from the Contractors’ Recovery Fund to Plaintiff in the total amount of $942.46. RECOMMENDED and DATED this day, January 4, 2001.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Original transmitted by mail this ____ day of January, 2001, to:

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

ATTN: Joyce Armijo

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827