ALJDEC decisions subject to certification as final

09F-RF0323-ROC · Registrar of Contractors · 2009-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2009 APPEARANCES: Plaintiff Eunice De Dios appeared on her own behalf. Defendant Discount Plumbing, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Plaintiff Eunice De Dios is entitled to an award and payment from the Residential Contractors’ Recovery Fund pursuant to A.R.S. § 32-1132(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Director of the Registrar of Contractors. Procedural Background On October 14, 2009, the Registrar of Contractors issued a Notice of Recovery Fund Payout Hearing advising the parties that the scheduled hearing in this matter would convene on November 18, 2009 at 1:00 p.m. On the date and at the time scheduled for the hearing, Plaintiff Eunice De Dios appeared on her own behalf. No one appeared on behalf of Defendant Discount Plumbing, Inc. (“Discount”). The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Discount, or the receipt of any information that would constitute good cause for its absence or delay. No such information was received. Therefore, the hearing proceeded in Discount’s absence. FINDINGS OF FACT 1. On June 2, 2005, Ms. De Dios entered into a contract with Discount for the replacement of a sewer line in her rear yard. The contract price was $4,558.46. Ms. De Dios paid Discount in full. 2. On September 12, 2005, Ms. De Dios filed a complaint against Discount with the Registrar of Contractors (“ROC”). Ms. De Dios’ complaint generally alleged poor workmanship by Discount. 3. On November 21, 2005, the ROC issued a Citation and Complaint in Case No. M06-0560, charging Discount with violations of A.R.S. § 32- 1154(A)(3), (A)(7), and (A)(23). 4. Discount failed to file a written answer to the Citation and Complaint and the ROC issued a default Decision and Order on February 10, 2006, ordering that Discount’s contracting license be revoked unless the ROC received proof that Discount had appropriately rectified the items of complaint and delineated in the Corrective Work Order. The ROC also ordered that Discount’s license be placed on disciplinary probation for a period of 180 days. The ROC further ordered that Discount pay a $500.00 civil penalty. 5. The ROC’s Order indicated that the Order would become effective on March 22, 2006, and that any request for rehearing must be filed on or before March 17, 2006. The Order also set forth that any appeal to the Superior Court must be filed and a Stay Order secured on or before March 22, 2006. 6. Discount did not file a request for rehearing, nor did it file an appeal with the Superior Court. 7. On April 24, 2006, the ROC revoked Discount’s contracting license. 8. On April 11, 2007, Ms. De Dios filed a claim with the ROC seeking payment from the Residential Contractors’ Recovery Fund (the “Fund”) in the amount of $8,419.61. 9. The ROC investigated Ms. De Dios’ claim against the Fund and pursuant to its July 29, 2009 Notice to Contractor of Claim for Administrative Payout, recommended a payout in the amount of $2,514.00. 10. On August 12, 2009, Discount requested a hearing regarding Ms. De Dios’ claim, and this matter was thereafter set for hearing before the Office of Administrative Hearings. 11. According to the Recovery Fund Inspection Report, a copy of which is contained in the case file, the contents of which administrative notice was taken, ROC Recovery Fund Inspector Ted Gerold conducted a Recovery Fund jobsite inspection on June 23, 2009, and found the “corrective work order to be in complete compliance with the claimant’s current situation.” Inspector Gerold reviewed the four bids supplied by Ms. De Dios. The bids were as follows: i. George Brazil $2,014.00 ii. Parker & Sons $9,353.37 iii. American Drain $3,200.00 iv. Equity Plumbing $6,344.92

12. The bids from Parker & Sons and Equity Plumbing include a full replacement of the sewer, work that was not contemplated by the Corrective Work Order. As such, Inspector Gerold did not consider those bids. Inspector Gerold opined in his Report and testified at hearing, that the George Brazil bid included the work ordered to be performed in the Corrective Work Order, excluding the permit and the two sections of pool fence. Inspector Gerold testified that in his opinion, based upon his construction experience, that an additional $500.00 would cover the permit fees and pool fence. Inspector Gerold recommended a good faith settlement offer in the amount of $2,514.00. 13. Thereafter, Ms. De Dios hired a contractor to perform the work at a cost of over $9,000.00. 14. Notwithstanding the fact that Discount requested the hearing, Discount did not appear for hearing, and as such did not present any controverting or mitigating evidence. 15. Based on the evidence presented, the Administrative Law Judge finds that Ms. De Dios is entitled to receive an award from the Fund in the amount of $2,514.00. CONCLUSIONS OF LAW Under A.R.S. § 32-1132, the ROC is empowered to determine and award payment to Ms. De Dios from the Fund. Ms. De Dios meets all of the requirements of a “person injured” as that term is defined in A.R.S. § 32-1131(3). Pursuant to A.R.S. § 32-1132(A), “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 . . . an amount of not more than thirty thousand dollars for damages sustained by the act, representation, transaction or conduct.” 4. The weight of the credible evidence presented at hearing demonstrated that Ms. De Dios was injured as a result of Discount’s poor workmanship, and that in order to rectify such, Ms. De Dios is entitled to a payout from the Fund in the amount of $2,514.00. 5. Based on the foregoing, Ms. De Dios should be awarded a total payout from the Fund in the amount of $2,514.00, all of which should be charged against Discount and/or persons named on Discount’s Class C-37R license as set forth in A.R.S. § 32-1139(B). RECOMMENDED ORDER The Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, the ROC shall commence and finalize payment procedures from the Fund to Eunice De Dios in the amount of Two Thousand Five Hundred Fourteen Dollars and Zero Cents ($2,514.00). 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 will be 40 days from the date of that certification.

Done this day, November 23, 2009.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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