ALJDEC decisions subject to certification as final

2009A-54241081-ROC · Registrar of Contractors · 2011-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2011 APPEARANCES: Peter Westby, Esq. represented Complainants Richard Fields and Diane Drell, who were also present; Respondent D and A Flooring, Inc., doing business as Pinnacle Flooring, did not appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Richard Fields and Diane Drell (“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 April 21, 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 June 8, 2011, at 8:00 a.m. On the date and at the time scheduled for the hearing, Peter Westby, Esq. represented Complainants, who were also personally present. No one appeared on behalf of D and A Flooring, Inc., doing business as Pinnacle Flooring (“Respondent”). The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Respondent, 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 Respondent’s absence. FINDINGS OF FACT 1. Complainants entered into a contract with Respondent for the installation of hardwood flooring in their home. The contract price was $17,503.30. Complainants paid Respondent in full. 2. On April 20, 2009, Complainants filed a complaint against Respondent with the ROC. Complainants’ complaint generally alleged poor workmanship by Respondent. The ROC designated the complaint as Case No. 09-5424. 3. On September 8, 2009, the ROC issued a Citation and Complaint in Case No. 09-5424, charging Respondent with violations of A.R.S. § 32- 1154(A)(2), (A)(3), (A)(7), (A)(9), (A)(13), and (A)(15). 4. On March 24, 2010, an administrative hearing was held before Administrative Law Judge M. Douglas in Case No. 09-5424. On March 24, 2010, Judge Douglas issued an Administrative Law Judge Decision concluding that Respondent violated A.R.S. § 32-1154(A)(2), (A)(3), and (A)(7), and recommending that Respondent’s Class K-08 license be revoked.

5. On May 11, 2010, the ROC issued an Order adopting Judge Douglas’ Recommended Order in Case No. 09-5424. The ROC’s Order indicated that the Order would become effective on June 20, 2010, and that any request for rehearing must be filed on or before June 15, 2010. The Order also set forth that any appeal to the Superior Court must be filed and a Stay Order secured on or before June 20, 2010. 6. On or about May 21, 2010, Respondent filed with the ROC a Request for Rehearing in Case No. 09-5424. On June 2, 2010, Complainants filed an objection to the Request for Rehearing. On June 3, 2010, Administrative Law Judge Douglas issued an Order Recommending Denial of Rehearing. On June 25, 2010, the ROC issued an Order Denying Request for Rehearing. 7. On August 6, 2010, the ROC revoked Respondent’s contracting license. 8. On or about July 9, 2010, Complainants filed a claim with the ROC seeking payment from the Fund in the amount of $17,503.30 for damages they alleged to have incurred as a consequence of Respondent’s poor workmanship. This amount represents the contract price paid to Respondent. The ROC designated Complainants’ claim as Case No. 2009- 54241081. 9. The ROC investigated Complainants’ claim against the Fund and pursuant to its March 4, 2011 Notice of Claim for Administrative Payout (“Notice”) in Case No. 2009-54241081, recommended a payout in the amount of $21,445.33. The Notice further indicated that “this amount was calculated based upon a low bid supplied by a licensed contractor submitted by Complainant[s] to document compensable actual damages pursuant to [A.R.S.] § 32-1132(A), as set forth in the underlying disciplinary case number 09-5424.” 10. Respondent requested a hearing regarding Complainants’ claim to the Fund, and this matter was thereafter set for hearing before the Office of Administrative Hearings. 11. Complainants submitted three bids from licensed contractors to the ROC for the repair of the floor. The bids were as follows: i. Builder’s Purchasing, Inc. $21,445.33 ii. Old World Floors $26,083.85 iii. MDS Floor Solutions (bid is illegible)

12. The low bid from Builder’s Purchasing, Inc. is approximately $4,000.00 more than Complainants’ original contract with Respondent due to the fact that the existing flooring installed by Respondent will need to be removed prior to installing the new flooring. 13. Notwithstanding the fact that Respondent requested the hearing, Respondent did not appear for hearing, and as such did not present any controverting or mitigating evidence. 14. 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 $21,445.33. 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 Respondent’s poor workmanship, and that in order to rectify such injury, Complainants are entitled to a payout from the Fund in the amount of $21,445.33. 5. Based on the foregoing, Complainants should be awarded a total payout from the Fund in the amount of $21,445.33, all of which should be charged against Respondent and/or persons named on Respondent’s Class K-08 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 Complainants Richard Fields and Diane Drell in the amount of Twenty One Thousand Four Hundred Forty-Five Dollars and Thirty-three Cents ($21,445.33). 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, June 21, 2011.

/s/ Sondra J. Vanella 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