ALJDEC decisions subject to certification as final

2010A-7100679-ROC · Registrar of Contractors · 2011-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 2011, at 1:00 p.m. APPEARANCES: Complainant Balint Kocsis did not appear; Respondent Ace Cabinetry and Installations, Inc. appeared through Keith Korittky, its qualifying party and president. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In April 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC231175, Class C-30 for residential finish cabinetry to Ace Cabinetry and Installations, Inc. (“Respondent”). On or about February 16, 2010, the Registrar received a claim to the Residential Contractors’ Recovery Fund (“the Fund”) from Balint Kocsis (“Complainant”) in the amount of “$13,000.00 +” to repair Respondent’s work at Complainant’s residence at 18039 West San Alejandro Drive, Goodyear, Arizona 85338. Complainant provided his mailing address as the same as the jobsite address. On or about March 11, 2011, the Registrar issued a Notice of Claim for Administrative Payout, informing the parties as follows: After a review of the claim and all supporting documentation, the Fund has determined that Complainant is to be awarded $11,608.78 in the form of a payment issued by the Fund. This amount was calculated based upon the low bids supplied [by] licensed contractors submitted by Complainant to repair deficient work performed by Respondent as set forth in the underlying disciplinary case 09-2601. [Emphasis in original.]

On March 29, 2011, the Registrar received Respondent’s request for hearing because its president disagreed with the proposed payout amount. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On April 7, 2011, the Registrar issued a Notice of Recovery Fund Eligibility/ Payout Hearing, setting a hearing on May 12, 2011, at 1:00 p.m. The Registrar sent a copy of the Notice of Recovery Fund Eligibility/Payout Hearing to Complainant at the mailing address that he provided on his claim to the Fund. Respondent’s qualifying party, Keith Korittky, appeared and testified on Respondent’s behalf. Complainant did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Complainant additional travel time and the hearing did not conclude until approximately 1:55 p.m., Complainant did not appear, personally or through an attorney, and did not contact the OAH. Consequently, Complainant did not present any evidence to establish the amount of the payout that he is entitled to recover from the Fund. Mr. Korittky testified that Complainant paid Respondent $7,574.00 to fabricate and install the cabinets in his kitchen. Mr. Korittky testified that Complainant purchased 22 cabinets and that the average cost in the industry for fabrication and installation of comparable cabinets is between $225.00 and $275.00 per cabinet. Mr. Korittky suggested that the Registrar should investigate for price-gouging the contractors who provided the bids that Complainant submitted to the Registrar. CONCLUSIONS OF LAW 1. The Notice of Recovery Fund Eligibility/Payout Hearing that the Registrar mailed to Complainant at the address that he provided on his claim to the Fund was reasonable and Complainant is deemed to have received the Notice of Recovery Fund Eligibility/Payout Hearing.[1] 2. Complainant bears the burden of proof and must establish the amount of the payout that he is entitled to recover from the Fund by a preponderance of the evidence.[2] 3. By failing to appear at the duly noticed hearing or to present any evidence in support of his claim, Complainant has failed to establish that he is entitled to recover a payout in any amount from the Fund. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Balint Kocsis’ claim in Case No. 2010-7100679, as Complainant has not established that he is entitled to any payout from the Residential Contractors’ Recovery Fund. 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, May 23, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 32-1132(A); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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