ALJDEC decisions subject to certification as final

07F-RF0526-ROC · Registrar of Contractors · 2009-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 23, 2009 APPEARANCES: Plaintiff appeared on her own behalf and Defendant failed to appear. The Residential Contractors’ 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 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 her receipt of a Decision, Order and Award from the Fund of $1,420.26, which she asserted was inadequate.

4. The Order granting rehearing indicates that Plaintiff is seeking an award in the amount of $13,227.00.

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

a. Plaintiff experienced a broken water heater in her mobile home, which caused significant water damage in specified areas of the home. She retained Defendant to repair the damage. b. Defendant’s failure to complete and/or properly repair the project caused Plaintiff to file the underlying Complainant with the Registrar of Contractors, which resulted in the revocation of Defendant’s license. c. According to the underlying Complaint in this matter, Plaintiff’s contract with Defendant was in the amount of $5,038.14. The Complaint further indicates that she had not paid Defendant in full for his work on the project and there was a balance outstanding on said contract in the amount of $2,238.14. d. Plaintiff testified that she received three (3) bids from contractors to fix the deficiencies in Defendant’s work and to complete the project. One bid was from Blue Sky Renovations (“Blue”) and it was in the amount of $8,500.00. This bid is not itemized and, in fact, it indicates on the bid that it is “non-itemized as discussed.” e. The second bid was from Construction and Remodeling by Rick Williams (“Williams”). This bid was for $13,227.00 and it was not itemized. f. The third bid was from Ryse Construction (“Ryse”) and it is in the amount of $13,658.36. This bid was itemized. g. At the hearing, Plaintiff testified that she agreed with the Fund that the Ryse bid is excessive and contains a number of items that are not related to Defendant’s work on the project. h. After the Fund received notice of Plaintiff’s claim, the matter was assigned to an inspector for the Fund. The inspector appeared at the instant hearing and presented testimony regarding his findings. i. The inspector was shown to have extensive construction experience, including mobile home work. In addition, he was shown to have extensive experience in insurance claim estimating. j. The inspector testified that he conducted a jobsite inspection and reviewed the underlying Corrective Work Order, as well as the Ryse bid because it was itemized. He indicated that he never saw the Blue bid before and the Williams bid was not itemized but was in the same “ballpark” as the cost set forth in the Ryse bid. k. According to the inspector, bids that are not itemized are basically worthless in determining a claim for a payout from the Fund. l. After completing his jobsite inspection and review of the Ryse bid he came to the following conclusions regarding the bid:

1. Stucco repairs for $3,900.00 were disallowed because Defendant’s contract had nothing to do with stucco. 2. A new entry door for $2,532.16 was also disallowed, as not being related to Defendant’s work on the project. 3. He found the removal and replacement of a bathroom vanity to be excessive, in that a minor repair was all that was necessary. He estimated the repair to be in the amount of $50.00. 4. Ryse was bidding to install some type of air conditioner door and he did not find that to be part of Defendant’s contract.

m. Ultimately, after not finding the Ryse bid to be reliable and having no other itemized bids, he went over the Corrective Work Order, line by line and determined what he believed, based on his construction background, were the reasonable costs to repair Defendant’s home and complete Defendant’s contract. His estimates of the repair costs came to a total of $3,658.40. The inspector’s calculations were not shown to be unreasonable n. After subtracting the unpaid balance from the original contract with Defendant, the inspector determined that Plaintiff should only be awarded $1,420.26. o. Plaintiff did not present any expert witnesses at the hearing to support her claim that she should be awarded $13,227.00.

6. Based on the foregoing, it is adjudicated and determined that Plaintiff is entitled to an award from the Fund in the amount of $1,420.26.

CONCLUSIONS OF LAW

1. Plaintiff is determined to be an injured person, as that term is defined in A.R.S. § 32-1131(3).

2. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award proper payment to Plaintiff from the Fund pursuant to A.R.S. § 32-1154(F).

3. The within record supports an award to Plaintiff in the amount of $1,420.26, 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 In view of the foregoing, it is recommended on the effective date of this Order the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to Plaintiff in the amount of $1,420.26. 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 2, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Registrar of Contractors William A. Mundell Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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