ALJDEC decisions subject to certification as final

08F-RF0821-ROC · Registrar of Contractors · 2008-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2008, at 1:30 p.m. APPEARANCES: The Plaintiffs appeared through Joe McKown. The Defendant failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Kathryn Winters. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT

1. There was no dispute that the Registrar of Contractors denied the Plaintiffs’ claim for payment for damages from the Contractors’ Recovery Fund on the following basis: (1) That the Plaintiffs do not quaify as a person injured as defined by A.R.S. §32-1131 (3) and (2) that pursuant to A.R.S. §32-1132(A), actual damages shall not be established by bids supplied by, or the value of work performed by, a person or entity that is not licensed pursuant to this chapter and that is requried to be licensed pursuant to this chapter. 2. Undisputed credible testimony and evidence, presented at hearing, established the Plaintiffs are the owners of a manufactured residenced located in a mobile home park located at 4550 N. Flowing Wells Rd., Tucson, AZ 85705. 3. The Registrar of Contractors, through its attorney of record, stipulated that credible testimony and evidence, presented at hearing, established the Plaintiffs did qualify as a “person injured” under the statute. 4. The Plaintiffs are found to be an “injured person” as defined by statute. 5. There was no dispute that the Defendant’s Contracting License has been previously revoked by Order of the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violations of the State’s Contracting Laws which gave rise to the instant claim for damages. 6. There was no dispute that the Plaintiffs paid the Defendant the sum of $2,000.00 to correct their roof. 7. There was no dispute that the Plaintiffs’ roof continued to leak after the Defendant performed his construction work on the Plaintiffs’ roof. 8. The Plaintiffs then filed a formal Complaint, against the Defendant, with the Registrar of Contractors and a formal Citation was issued against the Defendant’s License. 9. The Defendant failed to file an answer to the Complaint and Citation and the Registrar of Contractors issued an Order revoking the Defendant’s License. 10. The Plaintiffs’ roof was leaking and causing interior damage in their residence. The Plaintiffs then retained bids from licensed contractors for the correction of their roof. All of the licensed contractors opinioned that the Plaintiffs’ roof required complete removal and replacement and the low bid was for $6,100.00 and the high bid was for $7,798.00. 11. The Plaintiffs then contacted their son who indicated that one of his fellow firemen had roofing experience and would be willing to remove and replace the Plaintiffs’ roof for the cost of materials. 12. There was no dispute that the Plaintiffs then paid Andre Matus the sum of $2,525.00 for roofing materials and Mr. Matus removed and replaced the Plaintiffs roof. 13. There was no dispute that Mr. Matus is not a licensed roofing contractor. 14. The Plaintiffs stipulated that they are not entitled to any claim against the Contractors’ Recovery Fund for damages for the money paid to Mr. Matus. 15. The Plaintiffs filed the claim at issue with the Contractors’ Recovery Fund for the $2,000.00 that they had paid the Defendant. 16. The Plaintiffs testified that the construction work performed by the Defendant failed to comply with applicable industry and workmanship standards and they received no value for the money that they paid the Defendant. 17. The assigned Agency Inspector testified that he was very familiar with the Defendant and agreed with the Plaintiffs that the Defendant’s work was so poor that the Plaintiffs received no benefit for the $2,000.00 that they paid the Defendant. 18. Credible testimony and evidence, presented at hearing, established the Plaintiffs received no value for the $2,000.00 that they paid the Defendant; consequently, the Plaintiffs were damaged by the Defendant. 19. The Plaintiffs are found to be entitled to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of the Defendant’s acts or omissions. 20. Based upon credible evidence produced at hearing, it is found that a proper and reasonable amount payable to the Plaintiffs from the Contractors’ Recovery Fund, for the Plaintiffs’ actual damages, is the sum of $2,000.00 representing the $2,000. 00 that the Plaintiffs paid the Defendant for the proper correction of their roof.

CONCLUSIONS OF LAW 1. A.R.S. 32-1132(A) provides, in pertinent part, as follows: “The residential contractors’ recovery fund is established, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter may be awarded in the county where the violation occurred an amount of not more than thirty thousand dollars for damages sustained by the act, representation, transaction or conduct. An award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor’s violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.” 2. Under the facts and circumstances of this matter, the Registrar of Contractors is empowered to determine and award proper payment to the Plaintiff from the Contractors’ Recovery Fund pursuant to A.R.S. 32- 1154(E). 3. The credible evidence of record supports an award from the Contractors’ Recovery Fund to the Plaintiff in the sum of $2,000.00 all of which shall be appropriately chargeable against the Defendant and/or persons on the Defendant’s license as set forth in A.R.S. 32-1139(B) RECOMMENDed order In view of the foregoing, it is recommended the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to the Plaintiffs in the total amount of $2,000.00 for damages. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, October 30, 2008.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com