ALJDEC

02F-RF0185-ROC · Registrar of Contractors · 2002-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 23, 2002 at 1:30 p.m. APPEARANCES: Plaintiffs John James and Nancy James[1] appeared on their own behalf; Respondent Hogan Landscape Development Company did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

Defendant requested a hearing on Plaintiffs’ claim to the Residential Contractors’ Recovery Fund but failed to appear at the duly noticed hearing. Based on Defendant’s failure to appear, the Recovery Fund Manager’s fair offer, and Plaintiffs’ hearing testimony, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Registrar of Contractors. FINDINGS OF FACT The Registrar issued License No. 128200, Class C-21, to Defendant Hogan Management Group Inc. dba Hogan Landscape Development Company, a corporation, on October 15, 1997. The Registrar’s address of record for Defendant is 1142 N. Joshua Tree Lane, Gilbert, AZ 85234. In October 2000, Defendant contracted to perform certain landscaping work for Plaintiffs, at a cost of $2,800.00. On January 19, 2001, Plaintiffs made a claim to the Registrar against Defendant’s contractor’s license, which the Registrar designated Case No. M01-0910. The Registrar’s Inspector Ted Gerold performed a jobsite inspection and, on February 23, 2001, directed Defendant to perform extensive corrective work. Defendant did not perform the corrective work, Plaintiffs requested a hearing, and, on April 13, 2001, the Registrar issued a Citation and Complaint in Case No. M01-0910, charging Defendant with violations of A.R.S. § 32-1154(A)(23), (7), and (3). Defendant did not respond to the Registrar’s Citation and Complaint in Case No. M01-0910. On May 9, 2001, the Registrar issued a Decision and Order revoking Defendant’s contractor’s license if it did not provide proof by June 18, 2001 that it had complied with Inspector Gerold’s directive. Defendant did not comply with Inspector Gerold’s directive and, on July 12, 2001, the Registrar revoked its license in Case No. M01-0910. On September 5, 2001, Plaintiffs made a claim to the Residential Contractors’ Recovery Fund. On November 8, 2001, Inspector Gerold prepared a Recovery Fund Inspection Report, which recommended that Plaintiffs be awarded the full amount of their contract with Defendant, $2,800.00. On December 13, 2001, the Recovery Fund Manager made a Good Faith Settlement Offer to Plaintiffs in the amount of $2,800.00. On January 3, 2002, the Registrar issued a Notice to Contractor of Claim for Administrative Payout, informing Defendant that, if it did not request a hearing, a payout might be made to Plaintiffs from the Recovery Fund in the amount of $2,800.00. On January 18, 2002, the Registrar received Defendant’s request for hearing. The address shown on the request was 6671 E. Baseline Rd, 105- 203, Mesa, AZ 85206. On February 6, 2002, the Registrar issued a Notice of Hearing on Plaintiffs’ claim to the Recovery Fund, setting a hearing on April 23, 2002 at 1:30 p.m. The Notice was sent to Defendant via certified mail at 1142 N. Joshua Tree Lane, Suite #6, Gilbert, AZ 85234; 6671 E. Baseline Road, Suite 105-203, Mesa, AZ 85206; 31337 N. Sunflower Way, Queen Creek, AZ 85242-4332; and c/o Eugene M. Kadish, 440 E. Southern Avenue, Tempe, AZ 85282. The Registrar apparently gleaned the latter two addresses, including the address for Attorney Eugene M. Kadish, from other complaints against Respondent’s license.[2] Although the beginning of the duly noticed hearing was delayed fourteen minutes to allow Defendant additional travel time and the hearing did not conclude for another thirty-five minutes, Defendant neither appeared through a duly authorized employee or attorney, contacted the Office of Administrative Hearings to request a continuance or that the start of the hearing be further delayed, nor presented any evidence at the hearing to dispute Plaintiffs’ claim to the Recovery Fund. At the hearing, Inspector Gerold testified regarding his Recovery Fund Inspection Report and Plaintiffs testified that they were willing to accept the Recovery Fund Manager’s Good Faith Settlement Offer. CONCLUSIONS OF LAW The notice of the hearing that the Registrar mailed to Defendant at the address it provided, at its last known address, and at the other addresses on the notice was reasonable and it is deemed to have received it.[3] Plaintiffs are entitled to recovery from the Residential Contractors’ Recovery Fund for the amount of their damages, up to $20,000.00, caused by “an act, representation, transaction or conduct of a residential contractor that is in violation of this chapter or the rules adopted pursuant to this chapter . . . .”[4] Plaintiffs bear the burden of proof and must establish their right to recover from the Residential Contractors’ Recovery Fund by a preponderance of the evidence.[5] The Registrar’s Decision and Order in Case No. M01-0910 conclusively establishes that Defendant violated A.R.S. § 32-1154(A)(23), (7), and (3) in its performance of its contract with Plaintiffs. The evidence that Plaintiffs presented at the hearing establishes that the amount of their damages caused by Defendant’s statutory violations is $2,800.00. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors order the Residential Contractors’ Recovery Fund to pay $2,800.00 to Plaintiffs and that this amount be charged against Defendant’s License No. 128200, Class C-21.[6] Done this day, April 24, 2002.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] The undersigned on her own motion has amended the caption to include both John James, the original Plaintiff, and his wife Nancy as Plaintiffs because the record in this matter establishes that both own and appear on the title of the residence where Defendant performed contracting work. Under Arizona community property law, see A.R.S. § 25-211, any payment from the Residential Contractors’ Recovery Fund should be made to both Plaintiffs jointly.

[2] The Registrar’s record reveals that the Registrar also revoked Defendant’s license in Case Nos. M01-0256, M01-0660, and M01-0607, which involved different jobs and Complainants than Case No. M01-0910.

[3] See A.R.S. § 41-1061(A).

[4] A.R.S. § 32-1132(A).

[5] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[6] See A.R.S. § 32-1139(B).

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