ALJDEC decisions subject to certification as final

2010A-308474362-ROC · Registrar of Contractors · 2011-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2011 APPEARANCES: George Fleckenstein appeared personally. Javier Adolfo Lopez, doing business as J L Construction, appeared personally. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Javier Adolfo Lopez, doing business as J L Construction (“Respondent”), is the holder of License No. 143869, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. George Fleckenstein (“Complainant”) and Respondent entered into a written contract dated May 4, 2009, for the block construction for Complainant’s new home located at 61 Cougar Pass, Tumacacori, Arizona. Complainant served as an owner/builder. 3. Complainant paid Respondent a down payment in the amount of $5,000.00. 4. Complainant supplied the block materials, which were delivered to the jobsite. 5. Complainant later canceled the parties’ contract after Respondent failed to perform work on the project. 6. On July 12, 2010, Complainant filed a written Complaint with the Registrar seeking the return of his $5,000.00 down payment from Respondent. The Registrar designated the Complaint as Case No. 2010- [number redacted]. 7. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1) for abandonment. The Citation and Complaint was sent to Respondent at his address of record with the Registrar. 8. On November 9, 2010, the Registrar issued a default Decision and Order in Case No. 2010-[number redacted] finding that Respondent admitted to the charges contained in the Citation and Complaint, pursuant to A.R.S. § 32-1155(B), due to Respondent’s failure to file a written Answer as required by statute. The Registrar ordered that Respondent’s contracting license be suspended until the Registrar received proof that Respondent had appropriately rectified the issues contained in the Complaint. 9. Respondent timely filed a request for rehearing in Case No. 2010- [number redacted]. 10. On April 14, 2011, the Registrar issued an Order Denying Request for Rehearing in Case No. 2010-[number redacted]. 11. There is no evidence that Respondent appealed Case No. 2010-[number redacted]. 12. On June 9, 2010, Complainant filed a claim for an administrative payout from the Residential Contractors’ Recovery Fund (“Fund”) seeking $5,000.00 for damages sustained by him due to Respondent’s abandonment of the project. 13. On July 22, 2011, the Registrar issued a Notice of Claim for Administrative Payout advising the parties that the Fund had determined that Complainant be awarded the sum of $5,000.00, pursuant to A.R.S. § 32-1154(F). The parties were advised that they had 15 days to request an administrative hearing to contest the Fund’s determination. 14. On August 4, 2011, Respondent filed a written request for an administrative hearing contending that Complainant was not an “injured person” pursuant to A.R.S. § 32-1131 and not entitled to a recovery from the Fund. 15. The Registrar forwarded the matter to the Office of Administrative Hearings, an independent agency, for a recovery fund hearing. 16. Respondent has previously been determined to have violated the provisions of A.R.S. § 32-1154(A) (1) by abandoning Complainant’s project. Respondent cannot collaterally attack that determination in the recovery fund hearing. 17. The evidence of record established that Complainant has been damaged in the sum of $5,000.00 by Respondent’s abandonment of the subject project. 18. A review of the Registrar’s official electronic records reveals that Respondent’s contracting license is suspended pending his compliance with two orders issued by the Registrar. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 32-1131 et seq., the Registrar is the administrator of the Fund. 2. Pursuant to A.R.S. § 32-1154(F), the Registrar is authorized to order payment from the Fund to Complainant for Respondent’s abandonment of the subject project. 3. The evidence of record established that Complainant is a “[p]erson injured” by Respondent, as defined in A.R.S. § 32-1131(3). 4. Complainant has established an entitlement to receive an award of $5,000.00 plus interest from the Fund for damages caused by Respondent, pursuant to A.R.S. § 32-1154(F), all of which shall be appropriately chargeable against Respondent as set forth in A.R.S. § 32-1139(B). RECOMMENDED ORDER On the effective date of the Order entered in Case No. 2010- [number redacted], the Registrar shall commence and finalize payment procedures from the Fund to Complainant in the amount of $5,000.00. 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, October 24, 2011.

/s/ Brian Brendan Tully 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