ALJDEC decisions subject to certification as final

2009A-7100094-ROC · Registrar of Contractors · 2010-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 26, 2010 at 1:00 p.m. APPEARANCES: The Complainants appeared through Stephen Waltasti. The Respondent appeared through its attorney, Paul A. Louoks. 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 Complainants filed a formal complaint against the Respondent in ROC Case Number T08-0925. 2. The Registrar of Contractors then issued a Citation and Complaint based on the formal complaint and an administrative hearing was scheduled. 3. The Notice of Hearing issued by the Registrar provides, in relevant part, as follows: Both parties are advised that this is an adversarial hearing before an administrative law judge and is conducted in similar manner as judicial proceedings. Your attendance is required…Failure to attend the scheduled hearing is likely to result in an adverse ruling against you. 4. An administrative hearing for Case No. T08-0925 (Docket No. 08F-T0925- ROC) was held on May 11, 2009. The Complainants appeared through Stephen A. Waltasti. The Respondent failed to appear at the scheduled hearing. 5. Undisputed credible testimony and evidence supported findings which established that the Complainants were unable to qualify for the loan for the purchase of the home from the Respondent and that the Complainants were fully entitled to the return of their $15,000.00 in earnest money. 6. Undisputed credible testimony and evidence produced at the hearing supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32-1154A (7) (Wrongful Act). 7. On June 26, 2009, the Registrar issued an Order which provides, in pertinent part, as follows: Based on this Decision, the Order, as written, shall become effective on the 5 day of August, 2009, and Respondent’s Class KB- License No. 154649 be revoked. Any request for rehearing must be filed on or before July 31, 2009. Any appeal to the Superior Court must be filed and a Stay Order secured on or before the effective date set forth above. 8. The record in the matter establishes that the Respondent did not request a rehearing and that no appeal was filed with the Superior Court. 9. The Respondent’s Class KB-01 License was revoked on August 5th, 2009 pursuant to the terms of the Registrar’s Order. 10.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 their 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 $15,000.00 representing the $15,000.00 that the Complainants deposited with the Respondent as earnest money for the house that they were unable to obtain a loan for.

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 Complainants 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 Complainants in the sum of $15,000.00 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 Complainants in the total amount of $15,000.00 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 9, 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