ALJDEC decisions subject to certification as final

05F-RF0027-ROC · Registrar of Contractors · 2005-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 16, 2005 APPEARANCES: Edward Tinney appeared on behalf of himself and his wife, Joan Tinney (“Complainants”). J N S Kitchen and Bath Depot, doing business as Expose Kitchens and Baths, L.L.C. (“Defendant”) failed to appear. Assistant Attorney General Mona Peugh Baskin appeared on behalf of the Registrar of Contractors (“ROC”). ADMINISTRATIVE LAW JUDGE: Michael L. Barth _____________________________________________________________________ Findings of Fact 1. The parties were notified as required by applicable law that the purpose of the hearing was to determine whether an award from the Contractors’ Recovery Fund was justified by the evidence. 2. Despite having been provided notice of the hearing as required by applicable law, Defendant failed to appear. 3. Taking administrative notice of the records of the Office of Administrative Hearings, this tribunal makes the following findings:

a. Plaintiffs are the owner and occupier of the residential real property which was damaged as a result of Defendant’s violations of the contracting laws in the remodel of their bathroom. b. Defendant’s contractor’s license was previously revoked in Case No. 04-2650 by final Order of the ROC. c. Recovery Fund Inspector John Moll conducted an investigation of Complainant’s Recovery Fund claim and supporting documentation. d. On the basis of Inspector Moll’s findings and additional review of Plaintiff’s Recovery Fund claim and supporting documentation by Recovery Fund Manager Hester L. Scott, the ROC concluded that Plaintiffs actual damages were in the amount of $ 1,409.37. e. On October 28, 2004, the ROC made a good faith settlement offer in the sum of $1,409.37 to Plaintiffs in response to their application for a Recovery Fund award in the sum of $2,703.68. f. On November 4, 2004, Plaintiffs rejected the offer and requested a hearing. g. On December 13, 2004, the ROC issued a Notice to Contractor of Claim for Administrative Payout, notifying the parties that Plaintiffs were requesting an award in the sum of $2,703.68. h. The lowest bid obtained by Plaintiffs for correction of the workmanship deficiencies by Defendant was from A & D Marble in the amount of $3,511.82. i. Said bid included cost for installation of a new shower fixture in the amount of $300.00. j. The contract price between the Plaintiffs and Defendant for remodeling the bathroom was $4,506.13. k. Plaintiffs had paid Defendant the amount of $2,703.68 4. Based on the credible and uncontroverted testimony of Inspector Moll, this tribunal finds that proper correction of Defendant’s poor workmanship would not require installation of new shower fixture but would require the materials installed by Defendant to be removed and replaced. 5. Plaintiffs asserted that having paid Defendant $2,703.68 and not having received any service or materials for said payment inasmuch as correction of the work performed by Defendant would require all of the material installed by Respondent to be removed and replaced, their actual damages was the amount they had paid Defendant. 6. This tribunal rejects Plaintiffs’ assertion. While Plaintiffs’ assertion appears logical on its face, the true measure of Plaintiffs’ actual damages in this setting is the costs they have incurred and will incur to have the original scope of work for which they contracted Defendant to perform completed in a workmanlike and professional manner. Therefore, this tribunal finds that the true measure of Plaintiffs’ actual damages is the difference between the amount of the original contract price ($4,506.13) and the amount Plaintiffs will have to pay to have the original scope of work completed in a workmanlike and professional manner ($3,211.82, the A & D Marble bid less $300.00 for a shower fixture) plus the amount of the original contract price paid by Plaintiffs ($2,703.68). 7. This tribunal finds, therefore, that the amount of Plaintiffs’ actual damages is $1,409.37. Conclusions of Law 1. Plaintiffs fall within the statutory definition of a “person injured” for purposes of obtaining an award from the Recovery Fund. See A.R.S. § 32-1131(3). 2. Under the facts and circumstances of this case, the ROC is empowered to determine and award proper payment to Plaintiffs from the Recovery Fund. See A.R.S. § 32-1154(E). 3. An award from the Recovery Fund is limited to “actual damages” suffered by the claimant but shall not exceed an amount to complete or repair the project at issue. See A.R.S. § 32-1132(A). 4. The record supports an award to Plaintiffs in the amount of $1,409.37, all of which shall be appropriately chargeable against Defendant and/or persons on the license. See A.R.S. § 32-1139(B). Recommended Order In view of the foregoing, it is recommended that on the effective date of the Order entered in this matter that the ROC shall commence and finalize payment procedures from the Recovery Fund to Plaintiffs in the amount of $1,409.37.

Done this day, February 28, 2005.

______________________________________ Michael L. Barth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 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