ALJDEC

01F-RF0186-ROC · Registrar of Contractors · 2001-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2001. APPEARANCES: The Plaintiff appeared personally. The Defendant was represented by its owner and qualifying party, Francis McCafferty. Inspector Bill Redman of the Registrar of Contractors testified as a witness. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for hearing to determine if an award and payment from the Residential Contractors’ Recovery Fund (“Fund”), which is administered by the Registrar of Contractors, to Plaintiff for damages sustained by the acts or omissions of the Defendant pursuant to A.R.S. § 32-1154(E) is justified by the evidence. 2. Defendant is the holder of License Number 139541, a Class B residential general contractor license, issued by the Registrar of Contractors. 3. Plaintiff hired Defendant to perform certain remodeling work at his residence. 4. Subsequent to Defendant’s performance of the remodeling work, Plaintiff filed a complaint against Defendant with the Registrar of Contractors alleging that Defendant had violated provisions of the State’s contracting laws during the remodeling project. 5. As a result of the filed complaint, the Registrar of Contractors’ assigned agency inspector, Bill Redman, performed a jobsite inspection to view Defendant’s workmanship. After performing his inspection, Inspector Redman issued a Corrective Work Order dated February 28, 2000, directing Defendant to timely perform the following remedial work: f) Replace all damaged siding on mobile home. g) Install patio slab and walkway from garage to house. h) Finish patio (awning) per contract. i) Have valve reinstalled on main water line - this work must be done by a licensed plumbing contractor. 10. The Registrar of Contractors issued a Citation and Complaint against Defendant alleging that it violated the provisions of A.R.S. § 32-1154 (A)(7), (17), (23) and (3); namely A.A.C. R4-9-108. 11. On or May 9, 2000, the Registrar of Contractors issued a Decision and Order in Case No. H00-171 as a result of Defendant’s default in filing a written answer to the filed complaint. The Registrar concluded that Defendant had violated the provisions of the State’s contracting laws as charged in the citation and complaint. The Registrar ordered that Defendant’s Class B license be revoked unless it timely accomplished the corrective work set forth in the filed complaint and agency’s corrective work order. If the Defendant timely performed such remedial work, then the Registrar recommended that the citation and complaint be closed. . . . . . . 8. On or about June 21, 2000, the Registrar of Contractors revoked Defendant’s Class B license as a result of Case No. H00-171. 9. Plaintiff filed a claim for damages caused by Defendant with the Fund. 10. The Registrar’s assigned inspector reviewed Plaintiff’s Fund claim and recommended an administrative payout from the Fund to Plaintiff in the amount of $8,630.00. 11. Plaintiff is found to be an “injured person” as defined in the statute and is entitled to receive payment from the Fund for damages sustained as a result of Defendant’s acts or omissions. 12. The Registrar’s revocation of Defendant’s Class B license is determined to render the Defendant unable to remedy the violations of the State’s contracting laws which gave rise to the instant claim for damages. 13. Plaintiff has established his entitlement to an administrative payout from the Fund in the amount of $8,630.00, which represents a proper and reasonable amount payable to remedy the damages cause to Plaintiff by the Defendant.

CONCLUSIONS OF LAW

1. In this administrative proceeding, Plaintiff bears the burden of proof and must establish the amount of his damages by a preponderance of the evidence.[1] A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.[2] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[3] 2. Defendant’s default in Case No. H00-0171 before the Registrar of Contractors, which charged Defendant with a violation of A.R.S. § 32- 1154(A)(7)[4], (17)[5], (23)[6], and (3)[7], conclusively determined that Defendant had violated these statutes and required the Registrar to revoke the Defendant’s Class B license for failing to perform the required remedial repairs. 3. In Arizona, ‘“[p]ublic policy dictates that there be an end to litigation; that those who have contested the issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.’”[8] “That the judgment was rendered by default does not affect its validity, for such a judgment admits as true all the material allegations properly set forth in the complaint and is just as binding and conclusive as to them as though it had been rendered after answer and contest.”[9] This law conclusively establishes that Defendant violated A.R.S. § 32-1154(A)(7), (17), (23) and (3) in its construction at the Plaintiff’s residence. 4. The evidence submitted at the hearing establishes that Defendant’s violations of A.R.S. § 32-1154(A)(7), (17), (23) and (3) damaged Plaintiff in the amount of $8,630.00. 5. A.R.S. § 32-1132(A) provided that the Registrar may make an award from the Residential Contractors’ Recovery Fund in “any amount of not more than twenty thousand dollars for damages sustained by the act, representation, transaction or conduct” of a residential contractor that violates statutes governing contractors or the rules the Registrar has adopted pursuant to those statutes. Plaintiff has established an entitlement to an administrative payout from the Fund in the amount of $8,630.00 for damages caused by Defendant.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the entered Order in this case that the Registrar of Contractors shall commence and finalize payment procedures from the Residential Contractors’ Recovery Fund to Plaintiff in the amount of $8,630.00.

Done this day, May 22, 2001.

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App.1996). [2] Morris K. Udall, ARIZONA LAW OF EVIDENCE § 5 (1960). [3] BLACK’S LAW DICTIONARY at page 1064 (6th ed. 1990). [4] This statutory subsection includes among the grounds for suspension, revocation or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [5] This statutory subsection includes among the grounds for suspension, revocation or other disciplinary action against a contractor’s license “[k]nowingly contracting beyond the scope of the license or the licenses of the licensee.” [6] This statutory subsection includes among the grounds for suspension, revocation or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar.” [7] This statutory subsection includes among the grounds for suspension, revocation or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar”. The rule violated here was A.A.C. R4-9-108, which requires that [a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [8] Lofts v. Superior Court, 140 Ariz. 407, 410, 682 P.2 412, 415 (1984) (quoting Baldwin v. Iowa State Travelling Men’s Ass’n., 283 U.S. 522, 525, S. Ct. 517, 518, 75 L. Ed. 1244 (1931)). [9] Collister v.Inter-State Fidelity Building and Loan Ass’n, 44 Ariz. 427, 435, 38 P.2d 626 (1934) (citations omitted.

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