ALJDEC decisions subject to certification as final

09F-RF0212-ROC · Registrar of Contractors · 2009-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2009 at 9:00 a.m. APPEARANCES: The Plaintiffs appeared through Nicholas Romine. The Defendant appeared through its authorized representative, Donovan White. 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. The Plaintiffs entered into a Contract with the Defendant on September 12, 2007 for foundation reinforcement at their residence. The Contract amount was $18,023.31 of which the Plaintiffs paid $15,000.00 leaving an unpaid balance of $3,023.31. 2. The Plaintiffs filed administrative Complaints S08-0083 and S08-0083W with the Registrar of Contractors against residential license numbers 209070 Class C-09R and 209071 K-02 of Donovan Construction Inc. on October 24, 2007. 3. Pursuant to the filing of the formal Complaints, an assigned Agency Inspector conducted an onsite inspection and issued a written Corrective Work Order (CWO). The Plaintiffs requested that a Citation and Complaint be issued. The Defendant failed to respond to the Citation and Complaint. The Defendant’s licenses were suspended by default Order of the Registrar in the matters of S08-0083 and S08-0083W. License No. 209070 Class C-09R was revoked for the Defendant’s failure to pay a $1,000.00 civil penalty issued in S08-0083. 4. The Plaintiffs filed the administrative Recovery Fund claims at issue on September 18, 2008 claiming a loss of $26,957.32. 5. Credible testimony and evidence established that License No. 209070, Class C-09R was suspended for non-renewal of license on August 1, 2007.

6. There was no dispute that Plaintiffs contracted with the Defendant on September 12, 2007 and paid a deposit in the amount of $15,000.00 on September 13, 2007 and that construction work was last performed on the project on September 27, 2007. 7. Credible testimony and evidence established that the license suspension was never lifted or set aside and that the said license has since expired. 8. Credible testimony and evidence established that A.R.S. § 32-1132 (A) does not permit a payment from the Contractors’ Recovery Fund against License No. 209070, Class C-09R. 9. There was no dispute that License No. 209071 Class KB-02 was current when the parties entered into their construction agreement and during the performance of the Defendant’s construction work at the Plaintiffs’ residence. 10. The assigned Agency Inspector performed a Recovery Fund jobsite inspection at the Plaintiffs’ residence and reported that there is evidence of soil sinking all along the perimeter of the foundation of the residence and that several of these areas continue under the foundation and concrete slab. 11. The Plaintiffs submitted a proposal from Arizona Ramjack L.L.C for the sum of $26,957.32 with their claim utilizing the proposal as bid for corrective work on their residence. 12. Credible testimony and evidence established that the bid from Arizona Ramjack L.L.C. was not a bid for corrective work on the Plaintiffs’ residence. 13. Credible testimony and evidence established that the proposal from Arizona Ramjack L.L.C. was a proposal for the original work on the Plaintiffs’ residence which was rejected by the Plaintiffs when they selected the Defendant’s proposal for work on their residence. 14. Credible testimony and evidence established that the Plaintiffs have failed to submit even one bid for corrective work on their residence. 15. The credible evidence of record is insufficient and fails to support a finding as to what the Plaintiffs’ actual damages are in these matters. 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. The Plaintiffs have the burden of proof in these matters. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 3. The Plaintiffs failed to sustain their burden of proof to establish their actual damages in this matter. RECOMMENDed order In view of the foregoing, it is recommended that the Registrar of Contractors deny the Plaintiffs’ claim for damages from the Contractors’ Recovery Fund. 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, April 15, 2009.

______________________________________ M. Douglas Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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