ALJDEC decisions subject to certification as final

2010A-829184-ROC · Registrar of Contractors · 2012-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2011

APPEARANCES: Complainants appeared on their own behalf; no one appeared on behalf of Respondent;[1] the Residential Contractors’ Recovery Fund did not intervene in this matter and did not appear.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants Jeff and Tracy Standridge seek a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by defective workmanship of Respondent Stucco Masters, Inc. As noted above, Respondent did not appear. This tribunal entered the claim file received from the Registrar of Contractors into the record. Complainants are not challenging the Fund’s recommendation for payout in the amount of $12,369.00. The claim file shows that Respondent requested the hearing for this matter in order to challenge the amount of the payout. Because Respondent did not appear and put forth evidence, the Fund’s recommended payout is uncontested. At the hearing it was noted that Complainants were able to obtain only one bid for the corrective work and that the Fund accepted that one bid as the basis for the payout. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Decision for payout in the amount of $12,369.00. FINDINGS OF FACT 1. Respondent was the holder of license K-36.191353-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to plastering work for both residential and commercial properties. The Qualifying Party for the license is James Dennis Hinojosa. The license was revoked on September 21, 2010. 2. Respondent defectively installed stucco on Complainants’ home. After Complainants filed a complaint with the ROC against Respondent, and Respondent failed to timely answer, the ROC issued a default Decision and Order finding Respondent in violation of the licensing statutes and ordering corrective work. That Decision and Order became final, and Respondent did not perform the work. 3. Complainants then made a claim to the Fund. The Fund reviewed the claim and recommended a payout of $12,369.00. Respondent requested a hearing. 4. At the hearing, Complainants stated that they agree with the recommended amount of payout. 5. Respondent did not appear and, therefore, has waived any objection to the payout. 6. The record supports the recommended payout of $12,369.00. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that the amount of recommended payout is reasonable.[4] Complainants have met that burden. 2. Complainants are injured persons within the definition in A.R.S. § 32-1131(3). 3. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award an appropriate payment to Complainants from the Fund pursuant to A.R.S. §§ 32-1132 and 32-1154(F). There is a cap of $30,000 for recovery from the Fund.[5] 4. Respondent caused the injuries to Complainants by poor workmanship. 5. The evidence of record supports an award to Complainants in the amount of $12,369.00, all of which shall be chargeable against Respondent and any other persons on the 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 make payment from the Residential Contractors’ Recovery Fund to Complainants in the amount of $12,369.00.

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, January 3, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The morning of the hearing (approximately 3 hours prior to the 1:00 PM hearing start time), the tribunal received a fax from Respondent requesting a continuance of the hearing due to “a death in the family.” The fax is not signed and is stated to be from “Jim Hinojosa, President.” It states that “we” had to “fly back east” and that “We thought we could return in time for the hearing, but this is not the case and we will not be able to return to Arizona until next week.” The fax gave no indication that it was sent to Complainants or that any attempt was made to contact Complainants. At hearing, the fax was read to Complainants, who strenuously objected to any continuance and stated on the record that they did not believe that the fax was true. Due to the untimeliness of the request and the lack of specific information contained in the fax, the request for continuance was denied on the record and the hearing went forward. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949); Arizona Administrative Code (A.A.C.), OAH Rule R2-19-119(B). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] A.R.S. § 32-1132(A).

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