ALJDEC decisions subject to certification as final

08F-RF0221-ROC · Registrar of Contractors · 2008-10-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 29, 2008 APPEARANCES: Plaintiff: Melissa Furash appeared, pro per. Defendant: Defendant failed to appear either through authorized representative or counsel. Registrar of Contractors: Inspector Phil Pettice appeared on behalf of the Registrar of Contractors and was represented by Assistant Attorney General Keely Verstegen. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. On or about September 13, 2007, Plaintiffs filed the instant claim with the Registrar of Contractors (“ROC/Registrar”) asserting they were entitled to recover $32,230.00 from the Registrar of Contractors’ Recovery Fund (“Fund”). 2. The Registrar received advance notice of the existence and amount of Plaintiffs’ claim for an administrative payout from the Fund. 3. Based on Plaintiffs’ claim, Registrar of Contractors Inspector Phil Pettice (“Pettice”) conducted a Recovery Fund inspection on March 26, 2008 and issued a Recovery Fund Inspection Report on March 27, 2008 4. Inspector Phil Pettice (“Pettice”) further 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 $9,678.25. 5. On April 4, 2008, the Recovery Fund issued a Good Faith Settlement Offer to Plaintiffs of $9,678.22. (Exhibit 4) 6. On April 4, 2008, the Recovery Fund also issued a Notice to Contractor of Claim for Administrative Payout (“Notice to Contractor”) wherein Defendant was apprised of Plaintiffs’ $9,678.22 claim. 7. On April 15, 2008, Plaintiffs filed a correspondence with the Registrar of Contractors Recovery Fund wherein they related their belief that “the settlement offer is insufficient to repair the damages caused by [Defendant]” and requested a hearing. 8. On May 7, 2008, the Registrar of Contractors issued a Notice of Amended Recovery Fund Claim which related that Plaintiffs’ claim had been amended to $30,000.00. 9. The matter was scheduled for hearing pursuant to the Registrar of Contractors’ Notice of Recovery Fund Payout Hearing (“Notice of Hearing”) issued on or about August 28, 2008.[1] 10. Plaintiff Melissa Furash (“M. Furash”) testified and submitted Exhibits A through E which were marked, admitted and considered. 11. Defendant failed to appear either by authorized representative or counsel. 12. Inspector Pettice testified on behalf of the Recovery Fund. 13. Exhibits 1 through 4 were submitted by the Recovery Fund and stipulated into evidence by Plaintiffs. 14. Prior to the presentation of any testimony or evidence at the hearing a discussion ensued by and between Plaintiffs, Mr. Pettice and counsel for the Fund outside the presence of the undersigned. As a result of such discussion the Recovery Fund advised through counsel that it had increased its good faith settlement offer to Plaintiffs to $15,502.95. 15. The following salient facts were adduced at the hearing and/or were established by taking administrative notice of this tribunal’s receipt of the Registrar of Contractors’ file and are important to note: a. Inspector Pettice reviewed four (4) estimates/bids submitted by Plaintiffs for work required to complete/correct the project to determine what, if anything, was to properly be considered for a Recovery Fund payout. b. At the hearing M. Furash testified that Plaintiffs were unwilling to accept the Fund’s amended $15,502.95 good faith settlement offer primarily because all bids received recommended replacement of all cabinets and countertops in the kitchen and bathroom rather than merely repairing and refinishing the cabinets. M. Furash further asserted that Defendant destroyed the cabinets to such a degree that they could only be replaced. M. Furash did not assert that any other aspects of the project and the bids related thereto remained. c. M. Furash further testified, inter alia, that replacement of the cabinets and countertops was required because, among other problems, the kitchen cabinet between the stove and refrigerator was replaced with press board not wood and was out of square; paint and sealant on the cabinets came off when cleaned; the upper dish cupboard was smaller on the left than the right; and, the copper top on the sink was attached with sharp edges and/or nails exposed and not sealed. d. Inspector Pettice testified that the Fund increased the good faith settlement offer upon the presentation by Plaintiffs at the hearing of additional proof of payment on their underlying contract with Defendant. e. Inspector Pettice testified that all bids reviewed involved the replacement of all cabinets and that the underlying contract was only for the repair and refinishing thereof which was also encompassed in the issued Decision and Order. Pettice further testified that, while all cabinet doors and the countertop needed replacement, not all cabinets needed to be replaced but could be refinished, refaced and/or resized for approximately $6,000.00. f. Pettice further opined that in situations such as that present most contractors will submit bids only to replace and not to refinish and/or reface cabinets. g. Pettice also related that many items contained in the submitted bids, e.g., sink, faucet, garbage disposal and upgraded granite countertops, are not part of the underlying Decision and Order.

CONCLUSIONS OF LAW 1. Plaintiffs, as owners of their residence, are determined to be “injured persons” as that term is defined in A.R.S. §32-1132(3) and they are entitled to recover monies from the Recovery Fund for provable damages sustained as a result of act 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 the amended good faith settlement offer of $15,502.95 all of which shall be appropriately chargeable against Defendant and/or persons on the license as set for 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 $15,502.95.[2] Done this day, October 16, 2008.

_______________________ Brian E. Smith Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ________________________ ----------------------- [1] The mailing certificate in the referenced Notice of Hearing was undated. This tribunal received the Notice of Hearing August 29, 2008. [2] 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