ALJDEC

01F-RF0423-ROC · Registrar of Contractors · 2001-08-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2001.

APPEARANCES: The Plaintiff, Tamara Phipps, appeared in her own behalf. The Defendant, Sunridge Roofing, Inc., appeared through its President, Larry Anderson.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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. Plaintiff, as the owner and occupant of her residence, is found to be an “injured person” as that term is defined in A.R.S. § 32-1131(3), and she is entitled to recover monies from the Residential Contractor’s Recovery Fund (herein called the “Fund”) for provable damages sustained as a result of acts or omissions of Defendant.

2. Defendant’s contracting license has been previously suspended for cause by final Order of the Registrar of Contractors (herein called the “Registrar”) that was allowed to become final in the absence of any further administrative or judicial appeal therefrom. Such license suspension, coupled with a requirement to post a disciplinary bond in addition to the license bond otherwise required to be posted, was the result of a prior Decision and Order entered following an administrative hearing at which Defendant’s President had attended and in which he had fully participated. The subject matter of such hearing was a disciplinary complaint filed by this same Plaintiff alleging and subsequently proving violations by Defendant of the State’s contracting laws.

3. A claim for an administrative award from the Recovery Fund was filed by Plaintiff, originally in the amount of $737.97. The Registrar had received advance notification of the existence and amount of the above- named Plaintiff’s claim for an administrative payout from the Fund and had communicated a disagreement with $200.00 of the total claim for reason that it had been paid to an unlicensed contractor. After Plaintiff consented to lower her claim to $537.97, the Registrar subsequently elected not to intervene in this matter, thereby effectively consenting to Plaintiff’s entitlement to the entire claim, as modified.

4. This hearing was convened following Defendant’s express request therefor, subsequent to its receipt of the formal notice of claim for $537.97 sent to all parties, thereby indicating its objection to the payment of any portion of the claimed amount.

The instant claim related to the expenses attributable to the restoration of Plaintiff’s computer room. The fault and responsibility of Defendant for the deficient or incomplete construction of such room, as well as for its breach of contractual responsibilities, was established as a result of the previously entered license

suspension Order after the disciplinary proceedings. The numerous and detailed Findings of Fact on this issue that were incorporated in such final Order may not be collaterally attacked by Defendant in the instant administrative action by Plaintiff seeking an award from the Fund.

6. The evidence demonstrated that the monetary award Plaintiff is presently seeking consists of the cost of materials only, as obtained at a reasonable or even beneficial price, from Home Depot. These materials were necessary for the rebuilding of the walls and other features of the computer room which, as expressly determined at the prior disciplinary hearing, Defendant had taken down without authorization during its remodeling work. The cost of the labor to install these materials was the $200.00 sum paid by Plaintiff to the unlicensed contractor and subsequently eliminated from the within Fund claim.

7. No evidence was introduced at the hearing tending to indicate that the materials purchased by Plaintiff were unnecessary for accomplishing the remedial measures of reconstructing and restoring the computer room nor that the cost of such materials was excessive to any extent.

8. It is found and determined that the amount of damages sustained by Plaintiff arising from and caused by Defendant’s prior acts or omissions are in the amount of $537.97, as claimed hereunder, and such sum represents a proper and fully warranted monetary award to be paid to Plaintiff from the Fund in this case.

Notice is taken of the Registrar’s license records which reveal that Defendant was allowed to cancel its residential and commercial contracting licenses without posting the required disciplinary bond on the residential license. (The corporate status

of the entity holding such licenses had been dissolved). However, somewhat surprisingly, the same individuals that had been listed on Defendant’s license appeared on two new contracting licenses, residential and commercial, issued approximately three weeks after the cancellations, under the identical corporate name without posting any additional license bond.

CONCLUSIONS OF LAW

1. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award proper payment to Plaintiffs from the Residential Contractors’ Recovery Fund pursuant to A.R.S. § 32-1154(E).

2. The manifest purpose of the statutory Recovery Fund process is to compensate homeowner/occupants of residential property for damages or losses sustained as a result of dealings with licensed contractors.

3. Legally applicable principles of res judicata and collateral estoppel, mandating finality to previously litigated facts and issues between the same parties, effectively prevent Defendant from attacking the validity or binding effect of the previously adjudicated issues that are the same issues underlying the within Fund claim.

4. The within record supports an award to Plaintiffs in the amount of $537.97, 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 that on the effective date of this Order the Registrar of Contractors shall commence and finalize payment procedures from the Contractor’s Recovery Fund to Plaintiff in the amount of $537.97.

Dated: August 17, 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

ATTN:: Joyce Armijo -----------------------

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