ALJDEC

01F-RF0216-ROC · Registrar of Contractors · 2001-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2001 at 8:30 a.m. APPEARANCES: The Plaintiffs appeared through James Gallagher. The Defendant failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Kathryn Winters. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ 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. The Defendant’s contracting license has been previously revoked by Order of the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violations of the State’s contracting laws which gave rise to the instant claim for damages. 2. The Plaintiffs entered into an agreement with the Defendant for the construction of a swimming pool. There was no dispute that the purchase price of the completed swimming pool was the sum of $14,489.21. 3. The Defendant began construction of the swimming pool and during the course of construction, the Plaintiffs paid the Defendant the sum of $6,520.14. The Defendant abandoned the swimming pool in an unfinished condition. 4. The Plaintiffs then had the swimming pool completed by an alternative swimming pool contractor at an increased cost of $2,521.93. The Plaintiffs’ claim for damages is based upon the increased cost of completing their swimming pool. 5. Credible evidence, introduced at hearing, established that the alternative swimming pool contractor required the Plaintiffs to obtain a release from the Defendant before it would complete the swimming pool. 6. On September 15, 2000, the Plaintiffs executed a release with the Defendant. The actual wording of the Plaintiffs’ portion of the signed release is as follows: “We, James and Judy Gallagher, hereby release Premier Pools and Spas from any and all liability for all stages of construction performed on our pool between date of said contract and today.” 7. Although the Plaintiffs testified that they did not intend that the release be a total and complete release of the Defendant credible testimony and evidence, presented at hearing, established that it was in fact a complete and total release absolving the Defendant from any liability relating to the swimming pool. 8. Based upon the finding that the Defendant has been absolved from any liability relating to the swimming pool, it is found that the Contractors’ Recovery Fund has no liability in this matter. 9. Credible evidence, presented at hearing, established that the Contractors’ Recovery Fund has, as of the date of the hearing in this matter, paid out over $100,000.00 for the Defendants’ residential contractor’s license and that, pursuant to statute, no further sums are available for damages. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. §32-1139 (A), the liability of the Contractors’ Recovery Fund shall not exceed one hundred thousand dollars for any one residential contractor’s license. 2. Credible evidence supported a finding that the Plaintiffs have released the Defendant from any liability in this matter and, consequently, that the Contractors’ Recovery Fund has no liability on the Defendant’s behalf. 3. Under the facts and circumstances of this matter, the Registrar of Contractors is not empowered to determine and award proper payment to the Plaintiffs from the Contractors’ Recovery Fund. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors deny the Plaintiffs’ claim for damages from the Contractors’ Recovery Fund. Done this day, April 20, 2001.

________________________________ M. Douglas Administrative Law Judge

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

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

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488