ALJDEC decisions subject to certification as final

2009A-7090817-ROC · Registrar of Contractors · 2010-07-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 1, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Montgomery Lee. 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 Complainant seeks payment from the Contractors’ Recovery Fund for alleged damages sustained as a result of the Respondent’s acts or omissions. 2. The Respondent Keith Kayde Wilkins dba Wilkins Homes performed concrete work for the residence located at 4361 South Slow Pony Circle, Gold Canyon, Arizona. There was no dispute that the Respondent failed to perform his work in a professional and workmanlike manner and that there was unacceptable cracking in the concrete garage floor. 3. 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. 4. There was no dispute that the general contractor for the construction project, Malcom Developments Inc., (Corp) (License No. 222027, Class B-) had performed corrective work on the cracked concrete garage floor at issue. 5. The Complainant asserts that the corrective work performed on the cracked concrete garage floor by the general contractor was inadequate and seeks $9,365.00 from the Contractors’ Recovery Fund to pay for the removal and replacement of a cracked concrete garage floor for the residence located at 4361 South Slow Pony Circle, Gold Canyon, Arizona. 6. The assigned Agency Inspector testified that he had personally inspected the corrective work on the cracked concrete garage floor and found that the concrete garage floor had been corrected to within applicable industry and workmanship standards by the general contractor and that no further action was required. 7. Credible testimony and evidence, presented at hearing, established that the garage concrete floor has been corrected to within applicable workmanship and industry standards. 8. The Complainant testified that he and his family had utilized the home located at 4361 South Slow Pony Circle as their residence until it was foreclosed on by the lending institution. 9. The Complainant’s letter of April 25, 2008 (Exhibit R -1, page 7) provides, in pertinent part as follows: I am requesting that the above referenced cases be expedited due to the fact that the complaints are on spec houses that I am trying to sell. I also want to expedite because by the time the hearing(s) are done (July or August?) and I get any money from the recovery fund (another 16 weeks?), I will have foreclosed on the properties and all of this will be a waste of time. 10. Credible testimony and evidence established that Complainant caused the construction of three residences including the residence at issue as speculation houses with the intent of selling all three of the residences at a profit. 11. The assigned Agency Inspector testified that he had preformed a prehearing inspection in February, 2010 and that the residence was vacant at that time. 12. The Plaintiff admitted that lending institution had foreclosed its loan on the residence at issue on May 28, 2010 and that the residence located at 4361 South Slow Pony Circle, Gold Canyon, Arizona is now owned by the lending institution. 13. Credible testimony and evidence established that as of May 28, 2010 the Complainant was not the owner of the residence at issue. 14. The credible evidence of record is insufficient and fails to support a finding that the Complainant has been damaged by the Respondent’s errors and/or omissions in this matter. 15. The credible testimony and evidence of record is insufficient and fails to support a finding that the Complainant is a “person injured” as defined by statute. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that the Complainant is entitled to receive payment from the Contractors’ Recovery Fund for damages allegedly sustained as a result of the Respondent’s acts or omissions.

CONCLUSIONS OF LAW

1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Complainant is an “injured person” as defined by applicable statute and that the Complainant has been damaged by the Respondent’s errors or omissions See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. A.R.S. § 32-1132A 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. 5. A.R.S. § 32-1131 defines a “person injured” as follows: 3. “Person Injured” means any owner of residential real property which is classified as class three property under section 42- 12003 and which is actually occupied or intended to be occupied by the owner as a residence… 6. The Complainant failed to sustain his burden of proof to establish that Complainant is a “person injured” as defined by statue. 7. The Complainant failed to sustain his burden of proof to establish that the Complainant had suffered any damages in this matter.

RECOMMENDed order

In view of the foregoing, it is recommended that the Complainant’s claim for damages from the Contractors’ Recovery Fund be denied. 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 1, 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