ALJDEC decisions subject to certification as final

07F-RF0272-ROC · Registrar of Contractors · 2008-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2008

APPEARANCES: Plaintiff appeared on his own behalf and Defendant failed to appear. The Residential Contractor’s Recovery Fund (“Fund”) was represented by Assistant Attorney General, Mona Baskin. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Defendant’s contracting license has been previously suspended by final Order of the Registrar of Contractors. Such suspension is determined to render this Defendant unwilling 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. Plaintiff seeks to recover the sum of $28,719.00 from the Fund.

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

a. Pursuant to new home construction, Plaintiff’s general contractor retained Defendant to accomplish specified grading and excavation work. b. Uncontroverted evidence of record showed that sometime after Defendant performed the grading work in question, a significant rain caused a section of the yard to be “washed-out.” c. Plaintiff contends that the above-described “wash-out” on his property caused him to lose significant amounts of fill dirt, resulting in the monetary damages set forth in his claim form filed with the Fund. d. Evidence of record showed that notwithstanding the fact that Plaintiff’s general contractor retained Defendant to perform the grading and excavation work on the property, due to financial difficulties that the general contractor was experiencing at the time, Plaintiff actually paid Defendant directly for the work performed, after receiving an invoice from Defendant. e. The work in question was performed by Defendant on or about October 2004. Registrar of Contractors’ licensing records shows that as of January 15, 2004, Defendant’s Class KA license had been suspended for lack of bond. Ultimately, the license was cancelled by Defendant in May 2005, when he received a new license, no. 208067.[1] f. The Fund has refused to make any payment to Plaintiff, based on the fact that Defendant’s license was suspended at the time the work in question was performed. g. Plaintiff does not contest the fact that the license was suspended at the time of the work. However, he made reference to a page on the Registrar of Contractor’s internet website, wherein it provides, in pertinent part, “if you contract with a contractor whose license is not current, you will not be eligible to receive funds from the…Fund” (emphasis added). According to Plaintiff, he was not the “you” that contracted with Defendant, since his general contractor was the one that selected and retained Defendant. Thus, he concludes that he had no opportunity to check Defendant’s license status and should not be penalized for something that he had no control over.

6. Regardless of whether or not Plaintiff had an opportunity or the responsibility to check Defendant’s license status, prior to the time the work was performed, the uncontroverted evidence of record is clear that the license was suspended at the time of the contract and under the unequivocal language of the applicable Fund statute, no recovery from the Fund may be made. Plaintiff has failed to sustain the requisite burden of proof to establish his eligibility for a payout from the Fund.

CONCLUSIONS OF LAW

1. A.R.S. §32-1132 provides, in pertinent part, that “an award from the fund shall not be available to persons injured by an act…or conduct of a residential contractor whose license was…suspended at the time of the contract” (emphasis added).

2. Under the facts and circumstances presented herein, no award from the Fund may be paid to Plaintiff.

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 the instant 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, March 24, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

----------------------- [1] In light of the suspension of Defendant’s license in Registrar of Contractors’ case no. A06-0026, the Registrar of Contractors should consider pursuing an action, under A.R.S. §32-1154A (21),. against Defendant’s current’s license, which shows the same qualifying party on said license as appears on the license in question herein.

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