ALJDEC decisions subject to certification as final

08F-RF0212-ROC · Registrar of Contractors · 2008-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4th, 2008; 1:30 p.m. APPEARANCES: Plaintiff, Mr. Dennis Keith Brooks, represented himself. Defendant, Angel’s Concrete, LLC, was represented by Mr. Jason Moyes, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, and via webcam from the Registrar of Contractors’ Yuma office. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Defendant herein, Angel’s Concrete, LLC, was a licensed Arizona contractor when it constructed Plaintiff’s swimming pool and deck at Plaintiff’s Yuma, Arizona residence in 2006, for a price of $36,635.00. 2. Plaintiff filed a Complaint in the Arizona Registrar of Contractors’ office concerning Defendant’s workmanship on the pool and deck, which was assigned Case No. Y07-0034 and -0034W. 3. That case went to an administrative hearing in the Office of Administrative Hearings, on June 20th, 2007. A recommended Decision and Order by the assigned Administrative Law Judge was adopted by the Registrar. The Order directed Defendant to timely make extensive corrections to the swimming pool or face suspension of the two subject licenses. A part of the Order directed Defendant to have the local building authority inspect and approve the replacement table at the pool sitting area that was installed by Defendant to replace an earlier table installed by Defendant that had failed. 4. Defendant failed to comply with the Registrar’s Order and the license which is the subject of this Recovery Fund claim (Class C- number 200052) was suspended by the Registrar. It remains suspended pursuant to that same Order. 5. At this Recovery Fund hearing the assigned agency Inspector, Mr. Daryl McCloskey, testified. He performed an inspection just prior to the hearing, and confirmed that none of the corrective work ordered by the Registrar had been performed. He had reviewed the Plaintiff’s supporting documentation prior to the hearing, including the two bids he had sought and obtained from other appropriately licensed Arizona contractors. The Inspector had prepared and submitted to the agency file his Recovery Fund Inspection Report in the matter. Based on his inspection and review of Plaintiff’s documentation Inspector McCloskey recommended that the Plaintiff receive a payout from the Recovery Fund in the amount of $30,000.00. 6. The corrective work ordered was initially to have been performed by Konen’s Custom Pools & Spas, but that concern went out of business before performing any work. Defendant never followed through to insure that the corrective work was actually performed after the failure of Konen’s, which resulted in its license suspension. 7. Plaintiff then filed his Recovery Fund claim and began soliciting bids. Plaintiff called practically every appropriate contractor listed in the Yuma telephone directory, but after receiving some turndowns, and finding some of the listed numbers were no longer in service, and one contractor who was a sister of the Defendant and therefore conflicted, Plaintiff was able to obtain only one bid in addition to the original bid from Konen’s. 8. The Konen’s bid had been in the amount of $55,978.17. The other bid obtained by Plaintiff was from Artesian Pools and Spas (ROC # 179934). That was the lower bid in the amount of $38,965.00. Defendant’s evidence at the hearing included a bid form Konen’s in the amount of $7,822.50, but that amount expressly excluded any corrective work to the sitting table, which is the major cost item of the repairs. 9. Plaintiff still owed $1,776.85 on the original contract price. It bears mentioning that Plaintiff incurred other incidental costs as a result of the Defendant’s actions. He incurred an expense to a professional engineer to inspect and render an opinion on the condition of the table, which the engineer said was impossible. 10. Therefore, it appears from the greater weight of evidence that Plaintiff has incurred actual damages at the hand of Defendant in an amount exceeding $30,000.00. There was no evidence at the hearing that Plaintiff had received payment of any amount of the damage from any other source.

CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. 32- 1156 and A.R.S. 41-1092. 2. Plaintiff is an injured person as meant by A.R.S. 32-1131.3. 3. Under the facts and circumstances of this case the Registrar of Contractors is authorized to determine and award proper payment to the Plaintiff from the Residential Contractors’ Recovery Fund. A.R.S. 32-1154.E. 4. Although the facts proved actual damages in an amount exceeding $30,000.00, there is a statutory cap on any single payout from the Fund, which is $30,000.00. A.R.S. 32-1132. Plaintiff is entitled to recovery from the Fund of $30,000.00. 5. The entire amount of the justified award shall be appropriately chargeable to and against the Defendant and/or persons appearing on the Class C-09 License number 200052.

RECOMMENDED ORDER In view of the foregoing it is hereby recommended that on the effective date of this Order (40 days after the date of service appearing on the registrar’s certificate of service on the Order), the Registrar shall commence and finalize payment procedures from the Residential Contractors’ Recovery Fund to the Plaintiff in the amount of $30,000.00. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, March 5th, 2008.

______________________________________ Grant Winston 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 ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488