ALJDEC decisions subject to certification as final

2010A-27868253-ROC · Registrar of Contractors · 2012-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 20, 2011 APPEARANCES: Roberta Gotlieb appeared personally. Peter David Garcia, Jr., doing business as Bull Dog Mechanical, did not appear. The Registrar of Contractors was represented by Assistant Attorney General Elizabeth A. Campbell. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 1. Peter David Garcia, Jr., doing business as Bull Dog Mechanical (“Respondent”), is the holder of License No. 222120, a Class C-39R contracting license issued by the Registrar of Contractors (“Registrar”). 2. In 2009, Roberta Gotlieb (“Complainant”) contracted with Arizona Property Development (“APD”) to remodel her residence located at 2530 North 81st Way, Scottsdale, Arizona. 3. APD subcontracted with Respondent to install a new rooftop mounted gas- pac unit and new ducts in Complainant’s residence. 4. Complainant filed a written Complaint with the Registrar alleging deficient workmanship by Respondent. 5. In response to Complainant’s Complaint, the Registrar’s assigned inspector, Mark Alyea, issued a Corrective Work Order directing Respondent to timely repair leaky and poorly installed ducts. 6. The Registrar issued a Citation and Complaint charging Respondent with statutory and/or regulatory violations. Respondent failed to timely file an Answer to the Citation and Complaint. As a result, the Registrar issued a default Order suspending Respondent’s contracting license. 7. On November 30, 2010, Complainant filed a Recovery Fund Claim Form with the Registrar seeking an administrative payout in the sum of $51,569.73 from the Residential Contractors’ Recovery Fund (“Fund”) administered by the Registrar. 8. After investigating Complainant’s claim, the Registrar recommended an award of $1,250.00 as payment from the Fund for actual damages suffered by Complainant from the acts or omissions by Respondent. 9. Complainant appealed the amount of the award recommended by the Registrar. 10. The Registrar forwarded Complainant’s appeal to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 11. The Registrar issued a Notice of Recovery Fund Eligibility/Payout Hearing (“Notice”) that advised the parties of the time, date, and location of the evidentiary hearing before the Office of Administrative Hearings. The Notice was sent to the parties at their addresses of record with the Registrar. 12. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 13. The Registrar denied Complainant’s claim for damages for the following items because they were not “necessary to complete or repair a residential structure or appurtenance” as required by A.R.S. § 32- 1132(A): $148.00 to Ginny’s Landry on May 28, 2010, for clothes and cleaning of linens; $5,765.82 paid to Mattress Rx on November 6, 2010, for mattress and bedding items; $2,800.00 paid to Cook Bros. on September 20, 2010, for scrubbers/air filters; $87.00 paid to Banner Good Samaritan Medical Center on September 16, 2010; $32.62 paid to Wal-Mart on September 30, 2010, for a cellular telephone; $38.18 paid to FedEx on October 2, 2010, for printing services; $3,244.33 paid to A-AAA Key Mini Storage for rental from May 6, 2010 though November 3, 2010, for storage of Complainant’s belongings; $8,577.28 paid to Gainey Village Cleaners for the period of October 29, 2010 to November 5, 2010, for cleaning Complainant’s rug, fur coat, and bedding; $4,197.06 paid to 3 Palms from May 16, 2010 through December 19, 2010, for hotel lodging; $100.66 paid to Eco-Clean on March 9, 2010, and May 8, 2010, for protective masks; $169.13 paid to Southwest Gas for utility bills; $170.12 for lodging on April 28, 2010, that Complainant received reimbursement from her insurance carrier; $266.00 for lodging at Chaparral Suites on May 1, 2010, for lodging that Complainant received reimbursement from her insurance carrier; $2,466.13 for lodging at the Marriott that was reimbursed to Complainant by her insurance carrier; $2,740.63 for hotel invoices and telephone calls for the period from April 28, 2010 to May 15, 2010, that was reimbursed to Complainant by AAA Fire & Casualty; $89.69 for the cleaning of Complainant’s home that was compensated by AAA Fire & Casualty; $405.00 paid to Erviron Heath on March 16, 2010; and an estimate dated August 30, 2010, in the amount of $300.00 from Ginny’s Wash House for house cleaning. Although those costs may be recoverable from Respondent in a civil lawsuit filed in a court of competent jurisdiction, they are not recoverable from the Fund, pursuant to A.R.S. 32-1132(A), and were properly excluded by the Registrar. 14. At hearing, Complainant presented evidence of her payments to Wolfgang Heating & Cooling and Bankers Insulation. However, the work performed by those contractors were outside the scope of the original Complaint and Corrective Work Order. 15. Complainant’s additional claim for payment made to Russell Olinsky of Envirn Health for additional testing was included in a settlement agreement in another case with Arizona Property Development, who agreed to pay that expense. 16. Complainant’s claim for payment for her attorney fees is not recoverable pursuant to A.R.S. § 32-1132(A), because they were not earned for an appeal to the Superior Court. 17. The Registrar originally determined that Complainant established an entitlement to an award from the Fund for damages in the total amount of $1,250.00 as follows: $775.00 paid to Russell Olinsky for air testing done prior to the issuance of the Registrar’s Corrective Work Order; and $500.00 out-of-pocket expense for Complainant’s deductible that she paid to her home insurance carrier. 15. At hearing, the Registrar’s Fund supervisor, Glen Hawkins, credibly testified that Complainant presented additional evidence to support an increased award from the Fund in the total amount of $2,275.00 for damages. In addition to the Fund’s original recommendation to pay Complainant the sum of $1,250.00, Mr. Hawkins agreed that Complainant should be awarded an additional $500.00 for compensable damages for work performed by ABS A/C Repair & Service, L.L.C.[1] and $500.00 for cleaning. 16. The balance of Complainant’s claim for damages is deemed outside the scope of actual damages pursuant to A.R.S. § 32-1132(A), and, therefore, not eligible for an award from the Fund. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Complainant’s claim for an administrative payout from the Fund in this matter. 2. Pursuant to the provisions of A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The Registrar is empowered to determine and award proper payment to Complainant from the Fund pursuant to A.R.S. § 32-1154(F). 4. Complainant is an injured person, as defined by A.R.S. § 32-1131(3). 5. The evidence of record established Complainant’s entitlement to an administrative payout from the Fund in the amount of $2,275.00 for actual damages sustained by the acts or omissions by Respondent, pursuant to A.R.S. § 32-1132(A), all of which shall be appropriately chargeable against Respondent and/or persons on the license. RECOMMENDED ORDER On the effective date of the Order entered in this matter, the Registrar shall commence and finalize payment procedures from the Fund to Complainant in the amount of $2,275.00 for damages. In the event of certification of the 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 that certification.

Done this day, January 10, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The balance of Complainant’s $1,450.00 claim for work performed by this contractor covers work beyond the scope of the original Complaint and Corrective Work Order.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826