ALJDEC decisions subject to certification as final

2008A-3252130-ROC · Registrar of Contractors · 2011-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2011, at 8:15 a.m. APPEARANCES: The Complainants appeared through Michael Cave. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent’s Class B (No. 178738) License was revoked on February 7, 2011. 2. There was no dispute that the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors (Case No. P08- 0325) wherein the Complainants alleged that they had paid the Respondent the sum of $14,993.50 for new granite countertops that the Respondent failed to deliver and install in their residence. 3. Credible testimony and evidence established that on July 20, 2009, the Registrar of Contractors issued a Decision and Order wherein the Registrar suspended the Respondent’s License until the Registrar received proof that the Respondent had appropriately rectified the issues involved and detained in the Complainants’ Complaint against the Respondent in Case No. P08-0325. 4. There was no dispute that the Respondent filed a petition for rehearing and that the Respondent’s petition for rehearing was denied by the Registrar. 5. Credible testimony and evidence established that the Registrar’s Decision and Order issued in Case No. P08-0325 has become final. 6. Credible testimony and evidence established that the Respondent has failed to comply with the terms of the Registrar’s Decision and Order issued in Case No. P08-0325. 7. Credible testimony and evidence established that the Complainants paid the Respondent the sum of $14,993.50 as a deposit for the production, delivery and installation of new granite countertops in their residence. 8. Credible testimony and evidence established that the Respondent failed to produce, deliver and install the new granite countertops. 9. Credible testimony and evidence established that the Complainants received nothing of value for the $14,993.50 that they paid the Respondent for the new granite countertops. 10. The Complainants are found to be an “injured person” as defined by statute and are found to be entitled to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of the Respondent’s acts or omissions. 11. Based upon credible evidence produced at hearing, it is found that a proper and reasonable amount payable to the Complainants from the Contractors’ Recovery Fund for the Complainants’ actual damages, is the sum of $14,993.50 representing the deposit of $14,993.50 that the Complainants paid the Respondent for the production, delivery and installation of granite countertops that the Respondent failed to produce, deliver and install. CONCLUSIONS OF LAW 1. A.R.S. § 32-1132 (A) provides as follows: 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 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. Actual damages shall not be established by bids supplied by or the value of work performed by a person or entity that is not licensed pursuant to this chapter and that is required to be licensed pursuant to this chapter. If the claimant has paid a deposit or down payment and no actual work is performed or materials are delivered, the award of actual damages shall not exceed the exact dollar amount of the deposit or down payment plus interest at the rate of ten per cent a year from the date the deposit or down payment is made or not more than thirty thousand dollars, whichever is less. Interest shall not be paid from the fund on any other awards under this chapter unless ordered by a court of competent jurisdiction. An award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of a residential contractor who was not licensed pursuant to this chapter or whose license was in an inactive status, expired, cancelled, revoked, suspended or not issued at the time of the contract. No more than the maximum individual award from the fund shall be made on any individual residence or to any injured person. Notwithstanding any other provision of law, monies in the residential contractors' recovery fund shall not be directly awarded for attorney fees or costs except in contested cases appealed to the superior court. 2. Under the facts and circumstances of this matter, the Registrar of Contractors is empowered to determine and award proper payment to the Complainants from the Contractors’ Recovery Fund pursuant to A.R.S. § 32- 1154 (F). 3. A.R.S. § 32-1154 (F) provides as follows:

F. Notwithstanding any other provisions in this chapter, if a contractor's license has been revoked or has been suspended as a result of an order to remedy a violation of this chapter the registrar may order payment from the residential contractors' recovery fund to remedy the violation. The registrar shall serve the contractor with a notice setting forth the amount claimed or to be awarded. If the contractor contests the amount or propriety of the payment, the contractor shall respond within ten days of the date of service by requesting a hearing to determine the amount or propriety of the payment. Failure by the contractor to respond in writing within ten days of the date of service shall be deemed a waiver by the contractor of the right to contest the amount claimed or to be awarded. Service may be made by personal service to the contractor or by mailing a copy of the notice by registered mail with postage prepaid to the contractor's latest address of record on file in the registrar's office. If service is made by registered mail, it is effective five days after the notice is mailed. Except as provided in section 41-1092.08, subsection H, the contractor or injured person may seek judicial review of the registrar's final award pursuant to title 12, chapter 7, article 6.

4. Credible testimony and evidence established findings which support an award from the Contractors’ Recovery Fund to the Complainants in the sum of $14,993.50 all of which shall be appropriately chargeable against the Respondent and/or persons on the Respondent’s License as set forth in A.R.S. § 32-1139 (B) RECOMMENDed order In view of the foregoing, it is recommended that the Registrar shall commence and finalize payment procedures from the Contractors’ Recovery Fund to the Complainants in the total amount of $14,993.50 for their actual damages. 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, July 22, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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