ALJDEC decisions subject to certification as final

06F-RF0257-ROC · Registrar of Contractors · 2007-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 1, 2007. APPEARANCES: Brett Sherwood appeared personally. S W A Painting, Inc. did not appear. The Registrar of Contractors was represented by Assistant Attorney General Dawn Walton Lee. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. S W A Painting, Inc. (“Defendant”) is the holder of License No. 129530, a Class C-34 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On or about October 29, 2004, Brett Sherwood (“Plaintiff”) filed a written complaint against Defendant with the Registrar. 3. On November 24, 2004, the Registrar’s assigned inspector issued a Corrective Work Order directing Defendant to timely perform specific remedial work. 4. On or about January 21, 2005, the Registrar issued a Citation and Complaint in Case No. M05-0731 alleging possible violations by Defendant of A.R.S. § 32-1154(A)(2), (7), (23) and (3); namely R4-9- 108. 5. On or about February 9, 2005, the Registrar issued a default Decision and Order in Case No. M05-0731 due to Defendant’s failure to timely file a written answer to the Citation and Complaint. The Registrar Ordered that Defendant’s contracting license be revoked. 6. Defendant’s contracting license was revoked on April 14, 2005. 7. On November 28, 2005, Plaintiff filed a Recovery Fund Claim for an administrative payout from the Residential Contractors’ Recovery Fund (“Fund”). Plaintiff claimed losses in the sum of $18,000.00. 8. On August 22, 2006, the Registrar’s assigned Fund inspector performed an inspection at Plaintiff’s residence. At that time Plaintiff owned the residence but was not occupying it. It was up for sale. 9. The inspector confirmed that Defendant’s defective painting had not been corrected. The inspector reviewed the three bids submitted by Plaintiff. Those bids included the complete painting of the interior and exterior of the home, which exceeded Plaintiff’s complaint items in the underlying disciplinary case. 10. The inspector opined that Defendant’s deficient painting could be corrected for $6,000.00. 11. The inspector recommended that the Fund make a good faith offer to Plaintiff in the amount of $6,000.00 minus a balance due of $3,526.40, for a total administrative payout of $2,473.60. The inspector further recommended that Plaintiff be offered the $6,000.00 if he provided proof that Defendant had been paid in full. 12. Plaintiff requested a formal hearing to determine the value of his actual loss. The Registrar then forwarded this matter to the Office of Administrative Hearings, an independent agency, for hearing. 13. The commencement of the hearing was delayed approximately 15 minutes to allow for the late arrival of an authorized employee or attorney representing Defendant. After the delay, the Administrative Law Judge conducted the hearing in Defendant’s absence. 14. The Fund’s offer to pay Plaintiff an administrative payout of $2,473.60 is justified by the evidence. Plaintiff did not present persuasive evidence that he had paid Defendant the balance due of $3,526.40 in cash.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Plaintiff has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The Registrar is empowered to determine and award proper payment to Plaintiff from the Fund pursuant to A.R.S. § 32-1154(F). 4. The evidence of record supports an award to Plaintiff in the amount of $2,473.60, 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

The Registrar shall commence payment procedures from the Fund to Plaintiff in the amount of $2,473.60 for damages on the effective date of the Order entered in Case No. RF06-0257. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, August 21, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 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