ALJDEC decisions subject to certification as final

08F-RF0203-ROC · Registrar of Contractors · 2008-06-26

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 17, 2008 APPEARANCES: Plaintiff: Michelle Ford appeared, pro per. Defendant: Daryl Organ, member and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Phil Coscia appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record[1] in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. On or about September 7, 2007 Plaintiffs Jim and Michelle Ford (“Plaintiffs”) filed the instant claim with the Registrar of Contractors (“ROC”) asserting that they were entitled to recover $12,358.12 from the Registrar of Contractors’ Recovery Fund (“Fund”). 2. Based on Plaintiffs’ claim, Registrar of Contractors Inspector Phil Coscia (“Coscia”) investigated and analyzed the underlying facts and documentation provided by Plaintiffs, prepared a Recovery Fund Claim Worksheet/Checklist and Financial Loss Worksheet and concluded that Plaintiffs were entitled to a Recovery Fund payout of $12,358.12. 3. The ROC received advance notice of the existence and amount of the above-named Plaintiffs’ claim for an administrative payout. 4. The Registrar subsequently issued a Notice to Contractor of Claim for Administrative Payout (“Notice to Contractor”)[2] wherein Defendant was apprised of Plaintiffs’ $12, 358.12 claim. 5. On March 14, 2008, Defendant filed a correspondence with the ROC wherein it, inter alia, asserted that the “claim should not be paid from the Administrative Fund” and requested a hearing. 6. The matter was scheduled for hearing pursuant to the Registrar of Contractors Notice of Recover Fund Payout Hearing dated March 20, 2008 and convened in accordance therewith. 7. At the hearing, Complainant Michelle Ford (“M. Ford”) testified but submitted no exhibits. 8. Daryl J. Organ (“Organ”) appeared on behalf of Respondent but submitted no exhibits. 9. Coscia appeared and testified on behalf of the Registrar of Contractors at which time he reiterated his recommendation that Plaintiffs were entitled to a Recovery Fund payout of $12,358.12. 10. M. Ford testified that Plaintiffs were in agreement with the Recovery Fund’s recommended payout. 11. At the time for the presentation of Respondent’s case-in-chief, Organ attempted to present evidence pertaining to the underlying matter which was decided by default Decision and Oder issued by the Registrar of Contractors on March 7, 2008. After being advised that such evidence was inappropriate for the instant Recovery Fund hearing, Organ advised the undersigned that Respondent had no other evidence to present. 12. As a result, Respondent presented no evidence to show that the requested Recovery Fund payout was not reasonable and appropriate. 13. Based on the findings in the underlying case, as well as the findings set forth in the instant matter, it is adjudicated and determined that Plaintiffs are entitled to an award from the Fund in the total amount of $12,358.12.

CONCLUSIONS OF LAW 1. Plaintiffs, as the owners and occupants of their residence, are determined to be “injured persons” as that term is defined in A.R.S. §32- 1131(3) and are entitled to recover monies from the Recovery Fund for provable damages sustained as a result of acts or omissions of Defendant. 2. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award proper payment to Plaintiffs from the Contractors’ Recovery Fund pursuant to A.R.S. §32- 1154(E). 3. The within record supports an award to Plaintiffs in the amount of $12,358.12 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 that, on the effective date of the Order entered in this matter, the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund in the amount of $12, 358.12.[3] Done this day, June 26, 2008.

_______________________ Brian E. Smith 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] The record consists of those documents found within the Registrar of Contractors’ file, the content of which the Administrative Law Judge took Administrative notice, the exhibits offered by the parties and admitted into evidence and the digital record of the proceedings under A.A.C. R2-19- 121. [2] The mailing certificate of the Notice to Contractor contained in the file provided this tribunal by the Registrar of Contractors was dated March 2008 although no specific date was indicated nor was it executed by an ROC representative. [3] 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.

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