ALJDEC

98F-021-ROC-RHG · Registrar of Contractors · 1998-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: July 23, 1998. APPEARANCES: Plaintiffs appeared personally. Respondent did not appear.

ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The rehearing in this matter was originally scheduled to commence on July 23, 1998, at 1:30 p.m. On July 20, 1998, the Defendant filed a motion to continue the rehearing due to his presence being required before the Phoenix Municipal Court on that date at that time. Defendant made the continuance request three days prior to the scheduled administrative rehearing in this matter despite knowing of his non-jury trial conflict as of June 22, 1998. The parties were notified by this tribunal that the commencement of the rehearing was accelerated to follow the 9:00 a.m. hearing on July 23, 1998 before the undersigned Administrative Law Judge to accommodate the Defendant’s prior commitment. A review of the Office of Administrative Hearings’ automated docketing system indicates that Defendant communicated with staff on July 22, 1998, but did not indicate his inability to attend the rescheduled rehearing. The rehearing commenced at approximately 10:00 a.m. on July 23, 1998. Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for a rehearing requested by Defendant to contest a claim by Plaintiffs for an administrative payout from the Residential Contractors Recovery Fund pursuant to A.R.S. § 32-1154 (E). 2. The parties were previously involved in an administrative disciplinary action in docket number 96F-0685-ROC before the Registrar of Contractors. After a two day hearing before an administrative tribunal where each party was permitted to introduce testimonial and documentary evidence, the Registrar issued an Order in that case which suspended Defendant’s Class B-03 license until Defendant completed Plaintiffs’ front porch including cat run (exclusive of new fencing) and aviary as specified in the parties’ original contracts dated December 15 and 21, 1994. 3. The records of the Registrar of Contractors indicate that Defendant’s Class B-03 license has been suspended as a result of Defendant’s failure to comply with the Registrar’s Order in docket number 96F-0685-ROC. That case is final. 4. The Defendant’s failure to comply with the Registrar’s Order to perform the remedial work set forth in Finding No.2 above supports a finding that Defendant is unwilling or unable to perform the remedial work ordered by the Registrar necessary to remedy Defendant’s violation of the State’s contracting laws which gave rise to the instant claim for damages. 5. Plaintiffs are found to be injured persons as defined in the statute and are entitled to receive payment from the Residential Contractors’ Recovery Fund for damages sustained as a result of Defendant’s acts or omissions. 6. The weight of credible and reliable evidence of record supports a finding that Plaintiffs have suffered damages in excess of $20,000.00 as a result of Defendant’s failure to perform the corrective work ordered by the Registrar. 7. The Registrar of Contractors conducted an investigation of Plaintiffs’ claim for damages and concluded that an award to Plaintiffs in the amount of $20,000.00, the maximum amount permitted by statute, is justified. 8. Plaintiffs have established an entitlement to an award from the Residential Contractors’ Recovery Fund in the amount of $20,000.00.

CONCLUSIONS OF LAW

1. The Registrar of Contractors is empowered to determine and award proper payment to Plaintiffs from the Residential Contractors’ Recovery Fund pursuant to A.R.S. §32-1154(E). 2. The Registrar of Contractors may award the Plaintiffs an amount of not more than $20,000.00 from the Residential Contractors’ Recovery Fund for damages in this matter. A.R.S. §32-1132 (A). 3. The evidence of record supports an award to Plaintiffs in the amount of $20,000.00, 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 commencing on the effective date of the Order entered in this matter that the Registrar of Contractor shall commence and finalize payment procedures from the Residential Contractors’ Recovery Fund to Plaintiffs in the amount of $20,000.00. Done this day, July 23, 1998.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

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