Vacate: Settlement Recommendation

09F-RF0824-ROC · Registrar of Contractors · 2009-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 2009 at 8:00 a.m. APPEARANCES: Plaintiff Samir Chiban appeared on his own behalf; Defendant Hugo Normanod Ronquillo dba H Three Pool Service did not appear; the Arizona Registrar of Contractors appeared through its attorney, Montgomery Lee, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky ________________________________________________________________

FINDINGS OF FACT On November 19, 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC140317, Class K-06 for dual swimming pool service and repair to Defendant Hugo Normanod Ronquillo dba H Three Pool Service, a sole proprietor. Defendant’s address of record is 9808 S. 43rd Ave., Laveen, AZ 85339. On November 21, 2007, the Registrar received a complaint from Plaintiff Samir Chiban and his wife against Defendant’s license for certain landscaping work at their residence. On August 25, 2008, the Registrar issued a final Decision and Order against Defendant on Plaintiff’s workmanship complaint based on Defendant’s failure to file a written answer to the Citation and Complaint. The Registrar’s final Decision and Order found that Defendant had violated the statutes charged in the Citation and Complaint, A.R.S. § 32-1154(A)(1), (7), (17), (23), and (3) (namely A.A.C. R4-9-108). As a result of Defendant’s failure to comply with the Registrar’s Decision and Order in Plaintiff’s workmanship complaint, the Registrar first suspended and then revoked Defendant’s license on November 14, 2008. On March 27, 2009, Plaintiff made a claim to the Registrar’s Residential Contractors’ Recovery Fund (“the Fund”) to recover the damages caused by Defendant’s statutory violations, seeking to recover the $1,500.00 that he had paid Respondent under the parties’ contract, which was for a total amount of $3,300.00. The Fund investigated Plaintiff’s claim and the documents that he had filed in support of the claim. On June 17, 2009, the Fund’s Chief notified Complainant that his claim was ineligible for recovery from the fund because (1) Plaintiff had hired an unlicensed contractor to complete some of the work that Defendant had undertaken to perform in the contract, and (2) Complainant had failed to provide sufficient evidence to allow the Fund to determine the damages caused by Defendant’s abandonment of the contract and poor workmanship. Plaintiff requested a hearing on the Registrar’s notice that his claim was ineligible for any recovery from the Fund. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. On August 12, 2009, the Registrar issued a Notice of Recovery Fund Payout Hearing scheduled on October 27, 2009 at 8:00 a.m. The Registrar mailed a copy of the Notice to Defendant at his address of record. A hearing was held on October 27, 2009. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Defendant additional travel time, he did not appear personally or through an attorney, did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, and did not present any evidence to defend against Plaintiff’s claim to the Fund. Plaintiff provided additional documentation and testified at the hearing to establish the damages that Defendant’s abandonment of the contract and poor workmanship had caused him to incur, in addition to the work that the unlicensed contractor had completed. A recess was called to allow the Registrar’s representatives to evaluate Plaintiff’s additional evidence. After the recess, the parties confirmed on the record that they had resolved the dispute. Based on this additional evidence and Plaintiff’s proof of payment to Defendant in the amount of $1,500.00 out of the full contract price of $3,300.00, the Registrar’s representatives agreed to authorize and Plaintiff agreed to accept a $1,300.00 payout from the Fund. The terms of the settlement are fair and reasonable, under all the circumstances. Both parties voluntarily entered the settlement, knowing its consequences. CONCLUSIONS OF LAW 1. The Notice of the Recovery Fund Payout Hearing that the Registrar mailed to Defendant at his address of record was reasonable and he is deemed to have received it.[1] 2. Public policy favors settlement of disputes and parties should be free to resolve their differences voluntarily. 3. The settlement warranted termination of the hearing on the merits. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors order the Residential Contractors’ Recovery Fund to pay $1,300.00 to Plaintiff Samir Chiban. It is further recommended that this payout be charged against Defendant Hugo Normanod Ronquillo dba H Three Pool Service’s License No. ROC140317, Class K-06 under A.R.S. § 32-1139(B). Done this day, October 27, 2009.

_________________________________ Diane Mihalsky Administrative Law Judge

Copy transmitted by mail this _____ day of October, 2009 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By _______________________________

----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D).

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