ALJDEC decisions subject to certification as final

07F-RF0225-ROC · Registrar of Contractors · 2007-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2007 APPEARANCES: Plaintiff appeared on his own behalf and Defendant failed to appear. The Residential Contractors’ Recovery Fund (“Fund”) was represented by Assistant Attorney General, Dawn Lee. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

FINDINGS OF FACT

1. Defendant’s contracting license has been previously revoked by final Order of the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violation of the State’s contracting laws which gave rise to the instant claim for damages.

2. The Registrar of Contractors has received advance notification of the existence and amount of the above named Plaintiff’s claim for an administrative payout from the Fund.

3. This hearing was convened following Plaintiff’s express request therefor, subsequent to denial of his claim by the Fund.

4. According to the Notice to Contractor of Claim for Administrative Payout, Plaintiff seeks to recover the sum of $8,703.00 from the Fund.

5. The following salient facts were adduced at the hearing and are important to note:

a. Plaintiff retained Defendant to paint his house, including the front door and the existing pool deck. It was undisputed that the paint failed on the deck and on the front door. Pursuant to final Order of the Registrar of Contractors, Defendant was ordered to correct these deficiencies and based on the failure to comply, Defendant’s license was revoked. b. Plaintiff received three bids from pool companies to correct the paint peeling issue on the deck. All of these bids provided for removal of the existing deck and application of a new deck surface. The bid from Paddock Pools was the high bid, at $8,703.00. c. Subsequent to Plaintiff filing the instant claim with the Fund, the matter was assigned to one of the Fund’s inspectors, in order to investigate the claim and make a recommendation to the Fund. The inspector appeared at the instant hearing and provided testimony regarding his findings. d. The inspector concluded that all of the bids submitted by Plaintiff constituted a “tremendous upgrade” from the nature of the original work performed by Defendant. Since the original work by Defendant merely required a painting of the deck, the inspector determined that a complete replacement of the deck was not justified. He did not find any basis to show that the problems with the deck paint peeling could not be corrected by a proper preparation of the surface, along with appropriate painting procedures. e. Using his construction background experience, the inspector concluded that the sum of $825.00 would constitute a good faith offer to Plaintiff from the Fund and this sum would be adequate to properly repaint the deck and the front door. The inspector’s report was forwarded to the Fund. f. After receiving the inspector’s report, the Fund determined that Plaintiff had already received $1,000.00 from Defendant’s bonding company. Thus, they accepted the amount set forth in the inspector’s report as the appropriate amount to be paid to Plaintiff and since Plaintiff had already received $1,000.00 from the contractor’s bond, they took the position that Plaintiff was not entitled to any payout from the Fund, in light of the fact that Plaintiff had a net gain of $175.00. g. Plaintiff was not in agreement with the Fund’s position and requested the instant hearing. It should be noted that at the outset of the scheduled hearing, Plaintiff had indicated he recently attended the local home show and spoke to a number of other contractors regarding his deck problem. According to Plaintiff, these contractors also offered to apply a new deck surface. The lowest of these verbal estimates was shown to be $3,000.00. None of these contractors actually viewed the deck. h. Although Plaintiff does not believe his deck can be corrected by more painting procedures, however, he did not attempt to obtain any bids from licensed painting contractors in regard to whether or not they could correct the problem with the deck.

6. Based on the foregoing, it is determined and held that Plaintiff is seeking a very significant upgrade to the work performed by Defendant. There was no evidence presented to support a finding that the deck cannot be replaced by an appropriate painting procedure. The Fund’s position regarding the reasonable cost to accomplish the repainting of the deck, as well as the remedial work on the front door, was found to be credible. In addition, Plaintiff has already received $1,000.00 from another source for Defendant’s substandard workmanship. Thus, under all of the facts and circumstances presented herein, Plaintiff has failed in his burden of proof to show entitlement to any award from the Fund.

CONCLUSIONS OF LAW 1. Plaintiff has the burden of proof and must establish entitlement to a payout from the Fund by a preponderance of the evidence. A.A.C. R2-19- 119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990).

2. A.R.S. §32-1136E provides, in pertinent part, that “if the injured person has recovered a portion of his loss from sources other than the Fund, the Registrar, if the award is made pursuant to 32-1154…shall deduct the amount recovered from other sources from the amount of actual damages suffered pursuant to section 32-1132…” Since Plaintiff has already received $1,000.00 from Defendant’s bonding company and his damages were not shown to be greater than $825.00, Plaintiff is not entitled to an award from the Fund.

3. Plaintiff failed to sustain his burden of proof, necessary to establish that he is entitled to a payout from the Fund. Therefore, the Fund’s position, in denying Plaintiff’s claim should be affirmed and the instant matter dismissed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Plaintiff’s claim for an administrative payout from the Residential Contractors’ Recovery Fund should be denied and this matter dismissed. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, August 10, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 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