ALJDEC decisions subject to certification as final

2015A-1922-ROC-rf · Registrar of Contractors · 2016-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 9, 2016 APPEARANCES: Yair Lavi, Respondent’s representative; Hillary Hobson, Complainant; Tom Raine, Registrar of Contractors Attorney; Eric Ulinger, Registrar of Contractors witness; Sabrine Khan, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After appealing a proposed award of $30,000.00 to Complainant by the Registrar of Contractors’ Residential Contractors’ Recovery Fund, the greater weight of the evidence established that the decision was appropriate and the appeal should be denied. FINDINGS OF FACT 1. The issue in this matter is whether the Registrar of Contractors’ Residential Contractors’ Recovery Fund (“Recovery Fund”) award of $30,000.00 to Complainant was appropriate. 2. Respondent failed to file an answer to the underlying complaint, so the Registrar issued a default order suspending its license for 30 days and imposing a civil monetary penalty of $500.00.[1] 3. Complainant filed a claim with the Recovery Fund on March 23, 2016.[2] After reviewing the claim and the estimates provided with it, the Recovery Fund issued a notice informing the parties that it was authorizing a payout in the amount of $30,000.00, which is the maximum allowable payout. 4. Respondent appealed the notice and the matter was set with the Arizona Office of Administrative Hearings. 5. At the hearing, the Registrar of Contractors offered the testimony of Eric Ulinger, former Recovery Fund supervisor, testified that he reviewed the file in this matter and found the proposed payout amount to be appropriate. He said that the photos of the project showed that the repairs would not be minor and that he interviewed the Registrar of Contractors Investigator that issued the Directive from the Registrar to confirm what repairs would be appropriate. He said the Registrar of Contractors Investigator told him that none of the 11 items on the Directive were repaired to bring the work within workmanship standards. Mr. Ulinger also reviewed the proposed payout to ensure that the repairs in the estimates included only items in the Directive. He said Complainant submitted 2 estimates, one of which was unclear as to the scope of work. The other reflected the work in the Directive closely and was also the lower bid. It totaled $38,976.89. He said Complainant received $5,000.00 from Respondent’s bonding company but this would not affect the payout amount because the Recovery Fund is limited to $30,000.00 per payout. He said photos of the job show that the tile was laid out of line.[3] He said once tile is removed it cannot be reused. 6. Respondent’s representative appeared at the hearing and requested that the matter be continued to a later date. Respondent’s attorney had submitted a notice of withdrawal of counsel the day before the hearing. Respondent’s representative stated that he was unprepared for the hearing. The request for a continuance was denied because the request for continuance was untimely and failure to prepare for a hearing for which Respondent had notice for over a month is not good cause for a continuance, especially an untimely requested continuance. 7. Respondent’s representative testified that he underbid the job in the first place, that he thought the estimates Complainant submitted were too high, and that the job wasn’t finished yet. He said he thought the repairs would cost $15,000.00 based on something one of Complainant’s friends had said over a year earlier. However, he offered no further evidence to support his allegations. CONCLUSIONS OF LAW 1. Arizona Revised Statute § 32-1132(A) provides for a residential contractor’s recovery fund “from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed . . .” may be awarded an amount of not more than $30,000. Arizona Revised Statute § 32-1154(G) provides that the Registrar of Contractors “may” order a payout from the recovery fund where a contractor’s license has been revoked or suspended as a result of a violation and the contractor is unwilling or unable to remedy the violation. 2. The Registrar of Contractors has offered a prima facie case supporting the basis of its decision to award Complainant $30,000.00 from the Recovery Fund. Respondent offered insufficient evidence in response to support a finding in Respondent’s favor. Therefore, the greater weight of the evidence in this matter clearly supported the decision by the Recovery Fund and Respondent’s appeal should be denied. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s appeal be denied and that the decision by the Registrar of Contractors Residential Contractors’ Recovery Fund to award Complainant a $30,000.00 payout be sustained. Done this day, June 27, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Exhibit 4. [2] See Exhibit 5. [3] See Exhibit 7.

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