ALJDEC decisions subject to certification as final

2010A-308471337-ROC · Registrar of Contractors · 2011-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 20, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Stephen Peterson. 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 Notice of Claim for Administrative Payout provides, in pertinent part, as follows; The Complainant named above filed a claim for payment with the Residential Contractors’ Recovery Fund pursuant to A.R.S. § 32- 1154(F). After a review of the claim and all supporting documentation, the Fund has determined that Complainant is to be awarded $3,600.00 in the form of a payment issued by the Fund. In accordance with A.R.S. § 32-1154(F), both Complainant and Respondent have fifteen (15) days from the date of mailing of this Notice or until October 22, 2011, to request an administrative hearing to contest the amount and/or propriety of the payment. As provided in A.R.S. § 32-1154(F), the failure of Complainant and/or Respondent to file a timely written request for a hearing shall be deemed a waiver to contest the amount and/or propriety of the payment awarded.

2. There was no dispute that the Respondent requested an administrative hearing in a timely fashion. 3. There was no dispute that the Complainant filed a complaint against the Respondent with the Registrar of Contractors and that pursuant thereto, a jobsite inspection was held and a Corrective Work Order was issued on April 23, 2010. 4. After non-compliance with the terms of the Corrective Work Order, a Citation was requested and subsequently issued on September 1, 2010. 5. The Respondent failed to respond to the Citation and Complaint, and a Default Decision and Order was issued on October 6, 2010, resulting in the revocation of the Respondent’s License on December 8, 2010. 6. At the hearing, the Respondent disputed the amount claimed by the Complainant as being above the reasonable cost of performing the corrective action at issue. 7. Credible testimony and evidence established that the Complainant is an “injured person” as defined by statute and is 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. 8. Based upon credible evidence produced at hearing, it is found that a proper and reasonable amount payable to the Complainant from the Contractors’ Recovery Fund for the Complainant’s actual damages, is the sum of $3,600.00 representing the lowest bid from a properly licensed contractor for full compliance with the terms of the April 15, 2010 written Corrective Work Order issued in this matter. 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. 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. The credible evidence of record supports an award from the Contractors’ Recovery Fund to the Complainant in the sum of $3,600.00 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 shall commence and finalize payment procedures from the Contractors’ Recovery Fund to the Complainant in the total amount of $3,600.00 for Complainant’s actual damages in this matter. 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, December 21, 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