ALJDEC decisions subject to certification as final

08F-RF0262-ROC · Registrar of Contractors · 2008-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2008

APPEARANCES: Plaintiff appeared on his own behalf and Defendant appeared through its president and qualifying party, Randall Malone (“Malone”). The Residential Contractors’ Recovery Fund (“Fund”) did not appear at the hearing. 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 Defendant’s express request therefor, subsequent to its receipt of the Notice to Contractor of Claim for Administrative Payout.

4. Plaintiff seeks to recover the sum of $7,400.00 from the Fund.

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

a. At the outset of the scheduled hearing the parties were advised that the instant hearing was not to be used as an appeal from the underlying license disciplinary decision issued in the Complaint filed by Plaintiff against Defendant in Registrar of Contractors’ case no. A07-0236.

b. A review of the Complaint filed in case no. A07-0236 indicates, among other things, that the roof installed by Defendant was defective. c. Evidence of record showed that a Citation was issued by the Registrar in case no. A07-0236 and Defendant failed to file an answer within the required period of time. Based on Defendant’s failure to file the required answer to said Citation, the Registrar of Contractors issued a default Decision and Order on June 27, 2007, revoking Defendant’s license. Among other things, the Decision and Order of June 27, 2007 provided that by virtue of failing to file an answer, Defendant was deemed to have admitted the charges contained in the Citation and Complaint. This finding was in accordance with the provisions of A.R.S. §32-11155 (B). d. Based on the finding in the above-described June 27, 2007 Decision and Order, Defendant is found to have admitted that the roof was installed in a defective manner. e. Plaintiff secured three (3) bids from licensed contractors in order to correct the deficiencies in the roof. The bids ranged in price from a high bid of $11,731.00 to a low bid of $7,400.00. f. Subsequent to filing his claim for a payout from the Fund, the matter was assigned to one of the inspectors for the Fund. The inspector appeared at the hearing and presented testimony. g. The inspector reviewed the three (3) bids and advised the Fund to pay for the lowest of the three (3) bids, $7,400.00. h. According to the inspector, it is not unusual for a contractor to refuse to make repairs to deficient workmanship, since the new contractor would have to accept all of the prior work performed by Respondent. He did not voice any objection to the fact that the three (3) bids all contemplated replacement work. i. Malone objects to the requested payout, indicating that the roof merely needs repair work and moreover, he believes the bids are excessive in price, based on the total square footage of Plaintiff’s roof.

6. The weight of the credible evidence of record was sufficient to support a finding that the defective roof can only be remedied by another licensed contractor performing a complete replacement procedure. This Tribunal finds that a reasonable contractor would be unwise or ill advised to merely attempt a repair on the roof, since said subsequent contractor would have to accept all of the prior deficient work performed by Defendant.

7. Based on the foregoing, it is adjudicated and determined that the sum of $7,400.00 should be paid to Plaintiff from the Fund, in order to compensate him for the damages he sustained as a direct result of Defendant’s substandard workmanship on the roof.

CONCLUSIONS OF LAW

1. Plaintiff is determined to be 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(E).

3. The within record supports an award to Plaintiff in the amount of $7,400.00, 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 the Order entered in this matter the Registrar of Contractors shall commence and finalize payment procedures from the Residential Contractors’ Recovery Fund to Plaintiff in the amount of $7,400.00. 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, June 16, 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 ___________________________

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