ALJDEC

00F-RF0423-ROC · Registrar of Contractors · 2000-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2000. APPEARANCES: Donald W. Curtis, Complainant; and John Ratcliff, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainant, Donald W. Curtis, has established that Respondent violated the provisions of A.R.S. §32-1154(A) resulting in damage to him in the amount of $14,591.53. Therefore, I recommend a pay-out to him against Respondent’s account in that amount. FINDINGS OF FACT 1. Complainant, Donald W. Curtis, entered into a contract with Respondent, R. Johnson Construction, Inc. for the construction of a new car barn on his property. The amount of the contract was originally $61,273.81. Deducted from this amount was $10,231.81 for adjustments deleting electric, plumbing and garage doors. The net contract amount was $51,042.00, which was paid in full. Another change order was signed regarding the concrete slab in the amount of $736.22 with tax. Apparently, Respondent failed to include this in his final bill and Complainant did not notice it. Therefore, $736.22 was not paid on the contract inadvertently. 2. The concrete floor of the car barn cracked badly. Complainant filed a Complaint with the Registrar of Contractors on December 7, 1999. The Registrar of Contractors Inspector investigating the Complaint found that the Respondent’s license had been revoked. He, therefore, did not issue a Corrective Work Order. 4. On April 26, 2000, Complainant filed a Recovery Fund Claim. He submitted estimates for repair of the concrete, the lowest of which was $15,327.75. John Ratcliff, the Registrar of Contractors Inspector assigned to review the claim, recommended a pay-out in that amount. 5. In reviewing that recommendation, the Registrar of Contractors Recovery Fund Manager found the unpaid change order and deducted that from the estimate, resulting in approval of the pay-out in the amount of $14,591.53. Respondent appealed that determination. 6. A hearing was set at the Office of Administrative Hearings on October 23, 2000 to consider Respondent’s appeal. The Respondent did not appear, however, and the case proceeded as scheduled. CONCLUSIONS OF LAW 1. Registrar of Contractors is empowered to determine and award proper payment to Complainant from the Contractors’ Recovery Fund for violations of the statute by licensed contractors pursuant to A.R.S § 32-1154(E). 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. The record in this case supports an award to Complainant in the amount of $14,591.53. Respondent’s license has been revoked and he would be unable to comply with any orders issued by the Registrar of Contractors to correct the work. It is not appropriate to pay Complainant for the change order that was apparently overlooked by both parties. That amount of the contract should be considered an unpaid portion of the contract and not part of the recovery fund claim. The pay-out to Complainant from the recovery fund shall be appropriately chargeable against Respondent and/or persons on the 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 this Order the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to Plaintiff in the amount of $14,591.53.

Done this day, October 30, 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