ALJDEC decisions subject to certification as final

2008A-113951599-ROC · Registrar of Contractors · 2011-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2011 APPEARANCES: Complainants Robert C. Guthrie and Russell Ray Wood appeared on their own behalf. Greenbear Home Repair Corp. did not appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Robert C. Guthrie and Russell Ray Wood (“Complainants”) are entitled to an award and payment from the Residential Contractors’ Recovery Fund (“the 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 (“ROC”). Procedural Background On August 22, 2011, the ROC issued a Notice of Recovery Fund Eligibility/Payout Hearing advising the parties that the scheduled hearing in this matter would convene on October 3, 2011, at 8:00 a.m. On the date and at the time scheduled for the hearing, Complainants Russell Wood and Robert Guthrie appeared on their own behalf. No one appeared on behalf of Greenbear Home Repair Corp. (“Greenbear”). The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Greenbear, or the receipt of any information that would constitute good cause for its absence or delay. After the expiration of the fifteen minute grace period, the Administrative Law Judge convened the hearing and proceeded in Greenbear’s absence.[1] FINDINGS OF FACT 1. Complainants entered into a contract with Greenbear for the remodel of their master bathroom. Complainants paid Greenbear in full. 2. On August 11, 2008, Complainants filed a complaint against Greenbear with the ROC. Complainants’ complaint generally alleged poor workmanship by Greenbear. The ROC designated the complaint as Case Nos. T08-1395 and T08-1395W. 3. On September 8, 2009, the ROC issued a Citation and Complaint in Case Nos. T08-1395 and T08-1395W, charging Greenbear with violations of A.R.S. § 32-1154(A)(3), (A)(7), (A)(17), and (A)(23). 4. On June 15, 2009, an administrative hearing was held before Administrative Law Judge Grant Winston in Case Nos. T08-1395 and T08- 1395W. On June 18, 2009, Judge Winston issued an Administrative Law Judge Decision concluding that Greenbear violated A.R.S. § 32-1154(A)(3), (A)(17), and (A)(23), but not (A)(7), and recommending that Greenbear’s Class C-62 License Number 207139 and Class B-03 License Number 240856 be suspended until the ROC received written proof acceptable to the ROC that Greenbear had caused another appropriately licensed contractor to return and properly correct the items listed in the ROC Inspector’s Corrective Work Order. Judge Winston’s Decision further recommended that in the event that Greenbear had another appropriately licensed contractor perform the corrective work on or before the effective date of the Order, then Greenbear’s Class C-62 License Number 207139 and Class B-03 License Number 240856 would be suspended for a period of five consecutive days commencing on the effective date of the Order, for the violation of A.R.S. § 32-1154(A)(17). Judge Winston also recommended that Greenbear be ordered to pay a $250.00 civil penalty. 5. On July 30, 2009, the ROC issued an Order adopting Judge Winston’s Recommended Order in Case Nos. T08-1395 and T08-1395W, with minor modifications. The ROC’s Order indicated that the Order would become effective on September 8, 2009, and that any request for rehearing must be filed on or before September 3, 2009. The Order also set forth that any appeal to the Superior Court must be filed and a Stay Order secured on or before September 8, 2009. 6. Greenbear timely appealed the ROC’s Order to the Pima County Superior Court. 7. On January 29, 2010, Judge Stephen C. Villarreal issued an In Chambers Ruling Re: Plaintiff’s Appeal for Judicial Review of an Administrative Decision of the Registrar of Contractors. See Exhibit 2. Judge Villarreal affirmed the ROC’s administrative decision. Id. 8. On March 22, 2010, the ROC suspended Greenbear’s licenses. 9. On April 8, 2010, the ROC revoked Greenbear’s licenses for failing to pay the civil penalty. 10. On April 27, 2010, Greenbear requested that the ROC reinstate its licenses. 11. On June 8, 2010, Complainants objected to Greenbear’s request to reinstate its licenses. 12. On October 29, 2010, Complainants filed a claim with the ROC seeking payment from the Fund for damages they alleged to have incurred as a consequence of Greenbear’s poor workmanship. The ROC designated Complainants’ claim as Case Nos. 2008-13955008 and 2008-[number redacted]. 13. On April 1, 2011, the ROC denied Greenbear’s request to reinstate its licenses. 14. The ROC investigated Complainants’ claim against the Fund and issued an April 29, 2011 Notice of Claim for Administrative Payout (“Notice”) in Case No. 2008-13955008, formerly Case No. T08-1395, and Case No. 2008- [number redacted], formerly Case No. T08-1395W, recommending a payout in the amount of $8,845.00. 15. Greenbear requested a hearing regarding Complainants’ claim to the Fund, and this matter was thereafter set for hearing before the Office of Administrative Hearings. 16. Complainants submitted two bids from licensed contractors to the ROC for the repair of the bathroom remodel. The bids were as follows: i. Gary Hickey Construction, L.L.C. $8,845.00 ii. JJV’s Home Improvement $8,865.00

17. The ROC recommended a payout in the amount of the low bid. 18. Notwithstanding the fact that Greenbear requested the hearing, Greenbear did not appear for hearing, and as such did not present any controverting or mitigating evidence. 19. Based on the evidence presented, the Administrative Law Judge finds that Complainants are entitled to receive an award from the Fund in the amount of $8,845.00. CONCLUSIONS OF LAW Under A.R.S. § 32-1132, the ROC is empowered to determine and award payment to Complainants from the Fund. Complainants meet 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 Complainants were injured as a result of Greenbear’s poor workmanship, and that in order to rectify such injury, Complainants are entitled to a payout from the Fund in the amount of $8,845.00. 5. Based on the foregoing, Complainants should be awarded a total payout from the Fund in the amount of $8,845.00, all of which should be charged against Greenbear and/or persons named on Greenbear’s Class C-62 and Class B-03 licenses 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 Complainants Robert C. Guthrie and Russell Ray Wood in the amount of Eight Thousand Eight Hundred Forty-Five Dollars ($8,845.00). 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 forty (40) days from the date of that certification.

Done this day, October 19, 2011.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] On September 22, 2011, Greenbear’s representative, Jack Cinotto contacted the Office of Administrative Hearings requesting that the venue of the hearing be changed to Tucson. Mr. Cinotto was advised to submit his request in writing to the Office of Administrative Hearings. On September 29, 2011, Mr. Cinotto left a voice mail message with the Office of Administrative Hearings to advise that he sent his request for change of venue to the wrong address and that it was returned to him in the mail. On September 29, 2011, a staff member of the Office of Administrative Hearings contacted Mr. Cinotto to advise that the hearing remained scheduled in Phoenix. Mr. Cinotto indicated that he would not attend the hearing.

-----------------------

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