ALJDEC decisions subject to certification as final

2009A-7100152-ROC · Registrar of Contractors · 2010-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2010 at 1:00 p.m. APPEARANCES: The Complainants appeared through Ricardo Leon Ortiz. 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. On March 6, 2005 the Complainants entered into a written construction agreement wherein the Respondent agreed to perform masonry work for a garage and master bedroom addition to the Complainants’ residence located at 4121 W. El Camino del Cerro, Tucson Arizona 85745 for the total sum of $48,000.00. 2. There was no dispute that the Complainants had paid the Respondent $30,000.00 of the $48,000.00 due under the parties’ construction agreement. 3. When the Respondent abandoned the construction project leaving the Complainants’ with an unfinished master bedroom and garage the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. 4. The parties were unable to resolve their differences and the Complainants requested an administrative hearing. 5. The Respondent failed to file a required Answer and a default Decision and Order was issued. In accordance with the terms of the Decision and Order the Respondent’s Class C-31 License was placed on indefinite suspension in ROC Case No. T07-0349 until the Respondent complied with the terms of the Decision and Order. 6. There was no dispute that the Respondent has never complied with the terms of the Decision and Order. 7. The Respondent’s Class C-31 License has now been revoked by the Registrar of Contractors as a result of another matter. 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. 8. 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 actual damages that they have sustained as a result of the Defendant’s acts or omissions. 9. 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 $4,451.77. 10. The sum of $4,451.77 for the Complainants’ actual damages is obtained by adding the $1,961.00 that the Complainants paid for the their new permit from Development Services plus the sum $4,142.50 that the Complainants paid to Grenier Engineering Inc., plus the additional sum of $720.00 that the Complainants paid to their Architect for the project, plus the sum of $12, 977.00 that the Complainant paid to Ruiz Masonry to complete the masonry work on the construction project, plus the sum of $1,425.00 that the Complainants paid for hourly labor on the construction project, plus the sum of $1,226.27 that the Complainants paid for materials and supplies, plus the sum of $30,000.00 that the Complainants paid to the Respondent before the Respondent abandoned the construction project minus the sum of $48,000.00 owed to the Respondent under the terms of the parties construction agreement leaving the sum of $4,451.77 which is found to be the amount of the Complainants’ actual damages in this matter. 11. The same result can be obtained by simply deducting the $48,000.00 that the Complainants had originally agreed to pay the Respondent for the completion of the construction project from the Complainants’ actual cost of $52,451.77 for completing their construction project (the sum of $52,451.77 is composed of the $30,000.00 the Complainants paid to the Respondent, plus $1,961.00 that the Complainants paid to Development Services, plus the sum of $4,142.50 that the Complainants paid to Grenier Engineering Inc., plus the sum of $720.00 that the Complainants paid to their architect, plus the sum of $12,977.00 the Complainants paid to Ruiz Masonry and Building Supplies Inc., for completing the masonry work, plus the sum of 1,425.00 that the Complainants paid for hourly labor plus the sum of $1,226.27 that the Complainants for materials and supplies) leaving an amount of $4,451.77 which again is the total of the Complainants’ actual damages in this matter. 12. The Complainants also seek payment for their consequential damages in this matter. 13. Although the Complainants’ concerns, frustrations, and aggravation regarding the problems they have experienced with the construction of the new additions to their home are understandable, an award from the Contractors’ Recovery Fund is limited to payment for the Complainants’ actual damages and consequently, the Complainants’ claims for consequential damages must be denied as payment for consequential damages can not be made from the Contractors’ Recovery Fund. 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 for their actual damages 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 $4,451.77 for the Complainants’ actual damages 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 $4,451.77 for the Complainants’ 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, September 15, 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