ALJDEC decisions subject to certification as final

2009A-7100465-ROC · Registrar of Contractors · 2011-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Susan Miller. 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 Recommendation are made: FINDINGS OF FACT 1. The Complainants are found to be “injured persons” as defined by statute and are found to be entitled to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of the Respondent’s acts or omissions. 2. The Respondent’s contracting license has been previously revoked by Order of the Registrar of Contractors. Such revocation is determined to render Respondent unable to remedy the violations of the state’s contracting laws which gave rise to the instant claim for damages. 3. 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 $12, 290.00 representing the low bid from a licensed contractor, Westover Roofing LLC, for the proper correction of the Complainants’ roof. CONCLUSIONS OF LAW 1. A.R.S. § 32-1132 (A) provides 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. Actual damages shall not be established by bids supplied by or the value of work performed by a person or entity that is not licensed pursuant to this chapter and that is required to be licensed pursuant to this chapter. If the claimant has paid a deposit or down payment and no actual work is performed or materials are delivered, the award of actual damages shall not exceed the exact dollar amount of the deposit or down payment plus interest at the rate of ten per cent a year from the date the deposit or down payment is made or not more than thirty thousand dollars, whichever is less. Interest shall not be paid from the fund on any other awards under this chapter unless ordered by a court of competent jurisdiction. An award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of a residential contractor who was not licensed pursuant to this chapter or whose license was in an inactive status, expired, cancelled, revoked, suspended or not issued at the time of the contract. No more than the maximum individual award from the fund shall be made on any individual residence or to any injured person. Notwithstanding any other provision of law, monies in the residential contractors' recovery fund shall not be directly awarded for attorney fees or costs except in contested cases appealed to the superior court. 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 $12,290.00, 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 $ 12,290.00 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, May 9, 2011.

/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