ALJDEC

02F-RF0024-ROC · Registrar of Contractors · 2002-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On January 15, 2002, a recovery fund payout hearing was held to determine if the Plaintiff is entitled to an award of damages from the Residential Contractors’ Recovery Fund pursuant to A.R.S. §§ 32-1154(E) & 32-1132(A). Plaintiff Jane O’Neill appeared on her own behalf. The Defendant did not appear. Assistant Attorney General Montgomery Lee represented the Registrar of Contractors. Documentary evidence and testimony were presented. Upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. On September 20, 1999, the Plaintiff and the Defendant entered into a contract (“Contract”) requiring the Defendant to re-pipe (using copper) the Plaintiff’s home (“Home”) located at 4041 E. Fairmount Ave., Phoenix, Arizona. The Plaintiff paid the Defendant $1,800.00 pursuant to the terms of the Contract.

2. On October 12, 1999, the Plaintiff filed a Complaint with the Registrar of Contractors (“ROC”). See Plaintiff’s Complaint, dated October 12, 1999.

3. On November 19, 1999, the ROC issued a Citation and Complaint against the Respondent alleging violations of A.R.S. §32-1154(A)(3) & (7).

4. On December 16, 1999, the Registrar of Contractors issued a Decision and Order concluding that the Defendant was in violation of A.R.S. §32- 1154(A)(3) & (7). See Registrar’s Decision and Order, dated December 16, 1999. The Registrar further ordered that the Defendant’s Class C-37R License No. 097366 be suspended unless the Defendant performed the applicable corrective work. Id. The Defendant never performed the corrective work. On or about January 26, 2000, the Registrar of Contractors suspended the Defendant’s Class C-37R License No. 097366.

5. On or about July 12, 2001, the Plaintiff filed a request for an award of damages in the amount of $8,478.99 from the Residential Contractors’ Recovery Fund.

6. At the hearing in this matter, the Plaintiff testified that the Defendant never re-piped her Home because the Home already had copper pipes. However, the Plaintiff testified that the Defendant refused to return her $1,800.00. The Plaintiff further testified that the Defendant refused to correct the drywall damage that it caused to her Home. The Plaintiff paid $2,285.47 to repair the Home.

7. The Plaintiff testified that the Defendant installed a pipe in the Home’s attic that leaked. The Plaintiff testified that the leak caused her office ceiling to collapse. The Plaintiff testified that the collapsed ceiling destroyed her computer. The Plaintiff testified that she paid $1,909.88 (including a $299.95 warranty) to replace the computer. See Plaintiff’s Exhibit 2. The Plaintiff conceded that she is not entitled to reimbursement from the Residential Contractors’ Recovery Fund for the $299.95 warranty (because her previous warranty had expired). Accordingly, the Plaintiff requested $1,609.93 (i.e., $1,909.88 - $299.95) for the computer.

8. The Plaintiff testified that the Residential Contractors’ Recovery Fund should award her damages for the following: Drywall Repair $2,285.47 A/C Service Call $ 45.00 Contract Payment $1,800.00 Computer $1,609.93 Insurance Deductible $ 500.00 (Insurance proceeds) ($2,284.64) TOTAL $3,955.76

9. Mr. Lee argued that the Plaintiff should not be awarded damages for the personal computer. Mr. Lee argued that A.R.S. §32-1132(A) limits the Plaintiff’s damages to “an amount necessary to complete or repair a residential structure or appurtenance . . .” Mr. Lee argued that the computer was not permanently affixed to a part of the residential structure or appurtenance. Rather, it was simply personal property. Mr. Lee argued that the Plaintiff is only entitled to $2,345.83 (i.e., $3,955.76 - $1,609.93) from the Residential Contractors’ Recovery Fund.

10. The Plaintiff testified that her actual damages include the amount that would place her in the same position that she was in prior to contracting with the Defendant. The Plaintiff testified that she owned a functioning computer prior to contracting with the Defendant. The Plaintiff testified that she would still have her computer if not for the unprofessional work of the Defendant. Accordingly, the Plaintiff argued that the Residential Contractors’ Recovery Fund should award her damages for the computer.

CONCLUSIONS OF LAW 1. The Plaintiff has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the 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." Black's Law Dictionary, 1182 (6th ed. 1990).

2. At a minimum, A.R.S. §32-1131(3) and A.R.S. §32-1132(A) require the following: A. The Defendant's actions must violate Chapter 10 ("Chapter"), Title of the Arizona Revised Statutes (and any rules adopted pursuant to this Chapter). B. The Plaintiff must be an owner, tenant in common or joint tenant of the Home who is damaged by the failure of the Defendant to adequately build or improve the Home. C. The Plaintiff must suffer actual damages not to exceed "an amount necessary to complete or repair” the Home.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Defendant has violated provisions of this Chapter as evidenced by the Registrar’s December 16, 1999 Decision and Order.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Plaintiff is the owner of the Home.

5. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Plaintiff has incurred damages as a direct result of the Defendant’s violations. However, pursuant to A.R.S. §32-1132(A), these actual damages shall not exceed an amount necessary to complete or repair the residential structure (i.e., the Home). The undersigned Administrative Law Judge concludes that the Plaintiff is not entitled to an award of damages from the Residential Contractors’ Recovery Fund for purely personal property[1] (e.g., personal computer, clothes, books).

6. The undersigned Administrative Law Judge concludes that the Plaintiff is entitled to payment from the Residential Contractors’ Recovery Fund in the amount of $2,345.83. RECOMMENDED ORDER

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Plaintiff be granted payment in the amount of $2,345.83 from the Residential Contractors’ Recovery Fund.

Done this day, January 23, 2002.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of January, 2002 to:

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

By ___________________________ ----------------------- [1] This conclusion does not bar the Plaintiff from seeking damages for personal property in a civil court.

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