ALJDEC decisions subject to certification as final

08F-RF0522-ROC · Registrar of Contractors · 2009-01-22

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2009 APPEARANCES: Plaintiff: Maria Parra 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 Recovery Fund. 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 December 28, 2007, Plaintiff filed the instant claim with the Registrar of Contractors (“Registrar”) asserting she was entitled to recover $17,697.97 from the Registrar of Contractors’ Recovery Fund (“Fund”). 2. Based on Plaintiff’s claim, Registrar Inspector Phil Pettice (“Pettice”) investigated and analyzed the underlying facts and documentation provided by Plaintiff, prepared a Recovery Fund Worksheet/Checklist and Financial Loss Worksheet and concluded that Plaintiff was entitled to a Fund payout of $7,892.88. 3. Inspector Pettice conducted Recovery Fund inspection on June 24, 2008 and issued a Recovery Fund Inspection Report that day. Therein, Inspector Pettice recommended that a payment from the Fund “in the amount of the low bid of $6,485.00 plus the recoverable costs of $1,407.30 for a total payout of $7,892.30.” 4. The Registrar received advance notice of the existence and amount of Plaintiff’s claim for an administrative payout from the Fund. 5. On August 28, 2008, the Registrar issued a Notice to Contractor of Claim for Recovery Fund Payout (“Notice to Contractor”) wherein Defendant was apprised of the Plaintiff’s $7,892.88[2] claim. 6. On September 9, 2008, one Jesus Garcia (“Garcia”) filed a request for hearing.[3] 7. The matter was scheduled for hearing pursuant to the Registrar of Contractors Notice of Recovery Fund Payout Hearing dated December 22, 2008 (“Notice of Hearing”) and convened in accordance therewith after waiting the requisite fifteen (15) minutes to allow the parties to make their appearances. 8. Plaintiff appeared and testified but presented no exhibits. Instead, Plaintiff asked this tribunal to take administrative notice of the Registrar’s file provided. 9. Defendant failed to appear either by authorized representative or counsel. 10. Inspector Pettice appeared and testified on behalf of the Registrar of Contractors. 11. The following salient facts were adduced at the hearing and are important to note: a. Inspector Pettice reviewed two (2) estimates/bids by Plaintiff for work required to complete/correct the project to determine what, if anything, was to properly be considered for a Fund payout. b. At the hearing, Plaintiff testified that she is willing to accept the $7,892.88 payout from the Fund and that such payout was warranted by the incomplete/incorrect work performed by Defendant and/or any subcontractor. c. Inspector Pettice testified that the lowest bid submitted by Marshall Construction was reasonable and that additional costs of $1,407.88 were warranted including $1,000.00 for air conditioning service and/or materials.

CONCLUSIONS OF LAW 1. Plaintiff, as owner and occupant of her residence, is determined to be an “injured person” as that term is defined in A.R.S. §32-1132(3) and she is entitled to recover monies from the 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 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 $7,892.88 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 shall commence and finalize payment procedures from the Fund in the amount of $7,892.88.[4] Done this day, January 26, 2009.

________________________ Brian E. Smith Administrative Law Judge

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

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

By __________________________ ----------------------- [1] The record consists of those documents found within the Registrar’s 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] During his testimony Inspector Pettice recommended a payout of $7,892.88 but did not explain the discrepancy with his Recovery Fund Inspection Report amount of $7,892.30. [3] Mr. Garcia’s request for hearing was submitted on the letterhead of Sol Custom Construction, Inc. A review of the Registrar’s licensing database revealed that Garcia resigned as a principal of Defendant on January 12, 2006. [4] 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