ALJDEC

01F-RF0229-ROC · Registrar of Contractors · 2001-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 18, 2001 APPEARANCES: Plaintiff appeared on her own behalf and Defendant appeared through its owner and qualifying party, Ray Carnes. The Contractors’ Recovery Fund was not represented. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

FINDINGS OF FACT

1. Defendant’s contracting license has been previously suspended by final Order of the Registrar of Contractors on the prior license disciplinary hearing involving these same two parties (Registrar of Contractors’ case nos. G00-0260 and G00-0523) . Although there had been an issue raised before the Registrar of Contractors regarding denial of access, subsequent to the date the Order was issued by the Registrar in the above referenced license disciplinary hearing, the Registrar has previously determined that denial of access was a non-issue and accordingly did not provide the parties with a “compliance hearing.” Defendant did not appeal this compliance determination by the Registrar.

2. On August 29, 2000 the Registrar suspended Defendant’s license for his failure to comply with the Order issued in case nos. G00-0260 and G00-0523. Thus, it is determined that Defendant was unable to remedy the violation of the State’s Contracting laws which gave rise to the instant claim for damages. Although the parties to the instant Recovery Fund hearing were expecting to discuss other issues, based on the applicable law and the notice of hearing issued in this matter, the instant hearing was limited to a determination of the amount of actual monetary damages, if any, Plaintiff has sustained as a direct result of Defendant’s previously determined violations of the State Contracting laws.

3. 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. The Contractors’ Recovery Fund agreed to pay Plaintiff the total sum of $690.00 and Plaintiff averred at the instant hearing that she was willing to accept said offer from the Contractors’ Recovery Fund.

4. This hearing was convened following Defendant’s express request therefor, subsequent to his receipt of notice that the Contractors’ Recovery Fund was intending to pay Plaintiff the above-described payout.

5. The assigned inspector for the Contractors’ Recovery Fund appeared at the instant hearing and testified as to his findings on this case as follows:

a. He was not the original inspector assigned to the license disciplinary case. b. He reviewed the Decision and Order entered in the license disciplinary matter and conducted a jobsite inspection at Plaintiff’s home. Furthermore, he reviewed specified bids submitted by Plaintiff to support her claim. c. The inspector testified that the bids submitted by Plaintiff basically did not follow the items set forth in the original license disciplinary Decision and Order and thus, although he used said bids to a degree (where they were helpful at all), he made his recommendation for a “good faith” settlement of the case based on his experience in construction. d. For the issue of the adjustment of the sprinkler heads, he allowed $100.00. e. He allowed $25.00 for the minor repair to the hole in the timer box. f. Despite the fact that one of Plaintiff’s bids showed the sum of $200.00 for the correction of the sunken trenches, the inspector only allowed $150.00 for this aspect of the repair work. g. The inspector opined that the low voltage timer wiring was a “mess” and thus, he allowed a total of $100.00 for replacement of said wiring, including the proper anchoring of the timer box. h. Although not a part of the original license disciplinary Decision and Order entered, the inspector allowed payment for a $65.00 leak detection performed by Plaintiff subsequent to the time of the license disciplinary hearing and a bid of $250.00 to repair the determined leaks.

6. Nothing in the instant record served to explain why Plaintiff was unable to supply accurate bids for the remedial costs to cover only those items set forth in the original license disciplinary Decision and Order issued by the Registrar.

7. Defendant objected to the above-described monetary calculations given by the assigned inspector, indicating that he normally only charges a new customer approximately $45.00 for any given repair. He had no objection to the $25.00 calculation described above. Defendant also claimed that the $150.00 for the trench filling was excessive. Defendant further indicated that his prices are somewhere in the middle for what other contractors in the same business would charge.

8. Defendant objected to the inclusion of the leak detection billing of $65.00 and the $250.00 bid to repair the leaks based on the fact that said items were not a part of the original license disciplinary Decision and Order and thus, there was no order requiring him to correct these items.

9. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. Defendant was merely suspended, not revoked, for failing to accomplish specified remedial work and therefore, it is determined and held that the applicable law providing for an administrative payout from the Contractors’ Recovery Fund would not allow the $65.00 leak detection billing and the $250.00 bid to repair the leaks to be included in the instant claim for a payout, at this time. These matters should have been the subject of a separate license disciplinary complaint filed with the Registrar of Contractors and thus, said amounts shall be deducted from the recommended award set forth herein. Nothing in this ruling would serve to prevent Plaintiff from filing an additional complaint with the Registrar of Contractors on new issues not set forth in her original complaint.

10. It must be emphasized that the above-described figures arrived at by the assigned Agency inspector are merely a rough estimate regarding what he estimated it might cost Plaintiff to repair those items set forth in the Registrar’s Order which caused the suspension of Defendant’s license. Thus, considering this fact, along with Defendant’s assertions regarding the reasonable cost to correct the items, it is adjudicated and determined, under all of the circumstances presented herein, that Plaintiff should be awarded a total payout from the Contractors’ Recovery Fund in an amount no greater than $315.00.

CONCLUSIONS OF LAW

1. Plaintiff is determined to be an injured person, 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 Plaintiffs from the Contractors’ Recovery Fund pursuant to A.R.S. § 32- 1154(E).

3. The within record supports an award to Plaintiffs in the amount of $315.00, all of which shall be appropriately chargeable against Defendant 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 $315.00.

Done this day, April 19, 2001

______________________________________ Mark A. Silver Administrative Law Judge

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