ALJDEC decisions subject to certification as final

2009A-7090799-ROC · Registrar of Contractors · 2010-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear. 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. This matter was set for a further administrative hearing to allow the Complainant an opportunity to show actual damages as required by A.R.S. § 32-1132A. 2. There was no dispute that the Complainant was the owner and occupant of the residence at issue when the cause of action accrued in this matter. 3. The Complainant is found to be an “injured person” as defined by statute and is found to be entitled to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of the Defendant’s acts or omissions. 4. The Respondent’s contracting license has been previously revoked by Order of the Registrar of Contractors. Such revocation is determined to render this Respondent unable to remedy the violations of the state’s contracting laws which gave rise to the instant claim for damages. 5. Undisputed credible testimony and evidence, produced at hearing, established that the value of the Complainant’s residence was significantly diminished by the extremely poor workmanship that was performed by the Respondent on her residence. 6. The Recovery Fund Inspection Report (Exhibit No. C-1) provides, in pertinent part, as follows: The Complainant has submitted 3 proposals of comparable scope, by appropriately licensed contractors, to make repairs in accordance with the corrective order. Work on the remodel project had been completed. Award amount is not be offset by amounts owing on the original contract. Being that the proposals are of equivalent and relevant scope, I recommend payment to the Complainant of $19,934.00, based upon the lowest priced proposal, less prior Recovery Fund payout as follows: Repair proposal: Creative Landscape Images (ROC229727) $21,850.00. Maximum Recovery Fund Payout $30,000.00 Less: prior Recovery Fund payout -$10,066.00 Remaining available funds $19, 934.00. 7. A statement from the Complainant’s Realtor (Exhibit No. C-7) provides, in relevant part, as follows: We had many discussions on the “curb appeal” of the home, and the poor appearance of the landscape pavers. Nancy shared with me she did not have the money to redo the brick pavers at that time, as she was waiting a settlement from the ROC. After several months and no offers, I suggested that she discount the selling price of the house as a prospective buyer would be more inclined to overlook the pavers. She took my advice and was able to sell the home. In the summer of 2009, although similar properties in the surrounding area were selling higher, Nancy accepted an offer of $230,000, which was $19,900 less than the current asking price. The property was sold “as-is” with no expressed warranty on the pavers. 8. Undisputed credible testimony and evidence established that the Complainant’s property was diminished in value by the Respondent’s extremely poor workmanship in the total sum of $19,900.00. 9. Based upon credible evidence produced at hearing, it is found that a proper and reasonable amount payable to the Complainant from the Contractors’ Recovery Fund, for the Plaintiff’s actual damages, is the sum of $19,900.00 representing the dollar amount that the Complainant’s residence was diminished in value by the Respondent’s extremely poor workmanship in this matter. .

CONCLUSIONS OF LAW

1. A.R.S. § 32-1132(A) provides, in pertinent part, as follows: 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. 2. Under the facts and circumstances of this matter, the Registrar of Contractors is empowered to determine and award proper payment to the Complainant from the Contractors’ Recovery Fund pursuant to A.R.S. § 32- 1154(E). 3. The credible evidence of record supports an award from the Contractors’ Recovery Fund to the Complainant in the sum of $19,900.00 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 of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to the Plaintiff in the total amount of $19,900.00 for 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, August 11, 2010.

/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