ALJDEC-D failed to appear. D is found responsible for damages and an

97F-523-ROC · Registrar of Contractors · 1997-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 1997 APPEARANCE: Complainants appeared through Co-Complainant, Tracey Captain, and Defendant failed to appear. The Contractors Recovery Fund was represented by Assistant Attorney General, Montgomery Lee. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Defendant’s contracting license has been previously revoked by final Order of the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violation of the State’s contracting laws which gave rise to the instant claim for damages. 2. The Registrar of Contractors has received advance notification of the existence and amount of the above named Plaintiffs’ claim for an administrative payout from the Contractors’ Recovery Fund. 3. Although the notice mailed by the Contractors’ Recovery Fund to Defendant advised that Plaintiffs were seeking a payout from the fund in the amount of $7,055.25, evidence of record demonstrated that the sum set forth in said notice was incorrect, due to an error in addition by the Contractors’ Recovery Fund in calculating the total sum of the lowest bids received by Plaintiffs from several contractors. The bids in question were received from several different contractors in order to repair various areas of the construction work accomplished by Defendant. The low bids submitted by Plaintiffs actually totaled $7,455.25. Thus, notwithstanding the sum set forth in the aforementioned notice mailed to Defendant, under all of the salient circumstances presented herein Plaintiffs were allowed to proceed at the instant hearing with their actual claim of a payout from the fund in the amount of $7,455.25. 4. This hearing was convened following Plaintiffs’ express request therefor, subsequent to denial of their claim by the Contractors’ Recovery Fund. 5. It was undisputed that the instant claim arises out of deficiencies in new pool construction and specified concrete work performed on Plaintiffs’ property. Although Plaintiffs contend that Defendant named herein was the contractor involved in the project, the Contractors’ Recovery Fund objected to a payout against the named Defendant due to its belief, based on the paperwork previously filed by Plaintiffs, that a contractor other than Defendant constructed the pool and placed the concrete work in question. 6. The following salient facts were adduced at the hearing and are important to note: a. Plaintiffs contract for the pool and concrete construction was executed on a form showing Champagne Pools as the contractor. The contract was submitted by an individual named Craig Lowery and said contract, which was dated January 25, 1995, indicated that it would not be a valid contract until “signed by an officer of Champagne Pools.” Craig Lowery was not shown to be an officer of Champagne Pools and his relationship to Champagne Pools and the Defendant named herein remains somewhat unclear. It is interesting to note that notice of official licensing records of the Registrar of Contractors reveals that the Class B-06 license of Champagne Pools has also been revoked. b. Notwithstanding the above-described contract identification of Champagne Pools as the contractor for the project at issue herein, uncontroverted evidence of record established that at the time of entering into the contract Plaintiffs were advised by Craig Lowery that although the contract indicated Champagne Pools was the contractor, Defendant would actually be the contractor, due to the fact that Defendant’s personnel were formerly associated with Champagne Pools and were now “branching-off” into their own business under the name of Bahama Pools and Spas. 7. The aforementioned contract document was the only relevant document involved in the construction project that showed Champagne Pools as the contractor. The remaining documentation presented at the instant hearing showed Defendant as the contractor on the project. The evidence that Defendant was the contractor was demonstrated by a final invoice that showed Defendant’s name as the contractor, a check for $14,857.00 made out by Plaintiffs’ finance company paying Defendant for the construction work, a lien waiver from Defendant, and the above-described avowal by Craig Lowery, to Plaintiffs, that Respondent would be the contractor on the project. Thus, the weight of the evidence of record supports a finding that Defendant was the actual contractor on the project. 8. Plaintiffs submitted bids which all required removal and replacement of Defendant’s concrete work. The low bid for this aspect of the remedial work was $3,375.00 and said bid was not shown to be unreasonable. 9. Plaintiffs submitted bids for removal and replacement of the pool plaster and the low bid, in this regard, was $2,410.25. This bid was not shown to be unreasonable. 10. Plaintiffs submitted bids to remove and replace the pool heater which failed to heat the pool. The low bid to replace the pool heater was $1,670.00 and said bid was not shown to be unreasonable. 11. Based on the foregoing, it is adjudicated and determined that the total sum of $7,455.25 is an appropriate sum to effectively rectify Defendant’s workmanship deficiencies.

CONCLUSIONS OF LAW

1. Plaintiffs are determined to be “persons injured” as that term is defined in A.R.S. § 32-1131 (3). 2. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award proper payment to Plaintiff from the Contractors’ Recovery Fund pursuant to A.R.S. § 32-1154(E). 3. The within record supports an award to Plaintiff in the amount of $7,455.25, all of which shall be appropriately chargeable against Defendant and/or persons on the license as set forth in A.R.S. § 32-1139(B). . . . . . . RECOMMENDED ORDER

In view of the foregoing, it is recommended on the effective date of this Order the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to Plaintiff in the amount of $7,455.25.

Done this day, October 6, 1997.

_______________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of October, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Jennifer Varela 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826