ALJDEC decisions subject to certification as final

2008A-28968593-ROC · Registrar of Contractors · 2011-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2011 APPEARANCES: Felisa Hicks, Complainant; Montgomery Lee, Assistant Attorney General representing the Registrar of Contractors; Doug Ulmer, Registrar of Contractors witness; Phil Coscia, Registrar of Contractors Inspector ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ FINDINGS OF FACT 1. On March 5, 2008, the Complainant filed a complaint with the Registrar of Contractors against the Respondent. After an inspection, the Registrar of Contractors issued a Corrective Work Order (“CWO”). The Complainant amended her complaint by adding some items and a new CWO was issued. After the Respondent failed to address the items of correction, the matter went to hearing at the Office of Administrative Hearings. 2. Following the hearing, Administrative Law Judge Diane Mihalsky issued a Recommended Decision that was adopted by the Registrar of Contractors (together referred to as the “Final Order”). The Recommended Decision found that the Respondent was responsible for violating A.R.S. § 32-1154(A)(7), (23), and (3) with respect to various items of complaint. The Final Order revoked the Respondent’s contractor’s license. 3. The Complainant subsequently filed a claim with the Registrar of Contractors Residential Contractors’ Recovery Fund. On March 10, 2011, Registrar of Contractors Inspector Geoffrey Galgan issued a Recovery Fund Inspection Report recommending that $3,764.79 be awarded to the Complainant on her claim. The recommendation accepted Complainant’s estimates but rejected authorization for repair of Complainant’s French doors, her stamped concrete and her garage door stoop. Complainant appealed that offer and a hearing was set with the Office of Administrative Hearings. 4. At the hearing, it was established that Complainant’s French doors had been repaired prior to the complaint and they were not made a part of the complaint by the time the matter went to the initial hearing. Therefore, the Respondent did not have an opportunity to defend itself during the complaint and the Registrar of Contractors did not have an opportunity to determine whether a CWO should be issued. The Registrar of Contractors’ position was that the Complainant would have to file a new complaint in order to have her French doors considered. 5. Regarding Complainant’s stamped concrete, this issue was not in the complaint either and it was not a problem by the time of the initial hearing. Therefore, the Registrar of Contractors and the Respondent never had an opportunity to address the issue prior to it going to the Recovery Fund. The Registrar of Contractors’ position was that the Complainant would have to file a new complaint on this issue as well. 6. Regarding Complainant’s garage door stoop, Complainant testified that the concrete on the stoop is crumbling. She stated that she did mention the stoop in her complaint because there was a crack in it. However the CWOs did not require any action on it, and the Administrative Law Judge’s Recommended Decision did not cite it as a violation by the Respondent. Additionally, the Registrar of Contractors’ position was that the crack in the cement was not the same issue as the flaking of the concrete that is taking place now, and this too would have to be the subject of a new complaint. 7. Complainant notified the Registrar of Contractors at the hearing that her estimates had changed since they were first submitted, that one item of complaint had been erroneously left out of the first bid (tub refinishing), and one had been left out of the Registrar of Contractors’ Recovery Fund Inspection Report (concrete deflection in driveway). Registrar of Contractors Claim Reviewer Doug Ulmer testified that, using the updated figures, he would approve $3,937.73 to reflect the updated price estimates for the items previously approved plus the tub refinishing. He also stated that he would support the amendment of the award for the concrete deflection in the driveway when the Complainant submits a bid for that repair because the item was determined to be a violation at the initial hearing and it should have been included in the estimate in the first place. CONCLUSIONS OF LAW 1. A.R.S. § 32-1132(A) provides for a Residential Contractors’ Recovery Fund “from which any person injured by an act, representation, transaction or conduct of a residential contractor . . .” may be awarded an amount of not more than $30,000. A.R.S. § 32-1154(E) provides that the Registrar of Contractors may order a payout from the recovery fund where a contractor’s license has been revoked or suspended as a result of a violation and the contractor is unwilling or unable to remedy the violation. 2. Complainant has demonstrated by a preponderance of the evidence that the costs to repair the damage inflicted upon her home by Respondent’s poor workmanship currently totals $3,937.73. Complainant has not established that it would be appropriate to award any amounts for repair of the crumbling stoop, the French doors or the concrete stamping because these items were not the result of an act that was found to be a violation by the Respondent. A.R.S. § 32-1132(A) provides, in pertinent part, “An award from the fund is limited to the actual damages suffered…as a direct result of the contractor’s violation…” Since it has not been determined that the Respondent was responsible for a violation regarding the stoop, the French doors or the concrete stamping, the above statute does not authorize the issuance of an award for those items. 3. If the Complainant submits an additional bid for the repair of the deflection in her driveway concrete, the Registrar of Contractors may recommend an additional award at that time. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Complainant’s Recovery Fund Claim be sustained in the amount of $3,937.73 and that the Complainant’s request for inclusion of an award for her French doors, stoop and stamped concrete be denied. It is further recommended that if and when the Complainant submits a bid for repairing the deflection in her driveway concrete, the Registrar of Contractors consider an award for that item as well.

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 is the date of the certification by the Director of the Office of Administrative Hearings.

Done this day, June 6, 2011.

/s/ Dorinda M. Lang 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