ALJDEC

98F-210-ROC · Registrar of Contractors · 1998-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 1998 APPEARANCES: Plaintiff was represented by his attorney, Sandford Edelman and Defendant was represented by his attorney, Steve Bergsten. 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 Plaintiff’s claim for an administrative payout from the Contractors' Recovery Fund. 3. This hearing was convened following Defendant’s express request therefor. 4. Plaintiff seeks to recover the sum of $20,000.00 from the fund. 5. On September 9, 1997, the Registrar of Contractors issued an Order on Compliance Hearing in case no. P97-0014 (the prior disciplinary complaint filed by Plaintiff against Defendant ) indicating that Defendant had failed to comply with the terms and conditions of the previously entered Order in that matter and as a direct result thereof the Registrar revoked Defendant’s contracting license, thereby allowing Plaintiff access to make the instant claim for a payout from the Contractors’ Recovery Fund. 6. Plaintiff obtained three bids from contractors to complete the remedial work that Defendant had failed to accomplish pursuant to the Order issued in the above-described license disciplinary action. The bids submitted by Plaintiff ranged from a high bid of $107,397.08 to a low bid of $61,800.00. After inspection of Plaintiff’s claim by the assigned inspector for the Contractors’ Recovery Fund, the fund agreed to pay Plaintiff the total sum of $20,000.00 (the maximum allowed by applicable statute). Defendant objects to the amount of the proposed payout as being excessive. 7. Evidence of record demonstrated that Plaintiff, who lives in a small town, sought bids from numerous contractors but only three contractors responded to the bid request. It was further demonstrated that Plaintiff merely requested that the contractors submit bids based on what they believed would be necessary to accomplish an appropriate and effective remedy for the construction deficiencies left behind by Defendant. 8. Among other items contained on the bids submitted by Plaintiff, is a complete replacement of the interior wood trim and interior doors due to the fact that Defendant had applied an exterior only stain to said woodwork. The stain in question contained a mildewcide and petroleum distillates which, according to the Registrar’s Order on Compliance Hearing, were shown to create serious health and safety concerns in an interior application. 9. All three bids submitted by Plaintiff call for a complete replacement of the interior woodwork and doors. Thus, regardless of what Defendant may have done (and should have done) evidence of record shows that Plaintiff has been unable to locate a contractor willing to take on the interior woodwork and doors project as a repair procedure. The fund should pay Plaintiff the reasonable sum necessary to replace the interior woodwork and doors. 10. All three bids called for a complete replacement of the exterior decking installed by Defendant. The Registrar’s Order on Compliance Hearing indicates that Defendant had attempted to correct the deck problems by re-staining the deck and that the remedial work performed by Defendant only lasted for thirty (30) days following said remedial work and then the new staining procedure began to deteriorate. In addition, the Registrar found rotting wood, split wood, warped boards, twisted boards, and excessive knots affecting approximately 85% of the deck. Based on these findings, it is held that a complete replacement of the exterior deck was warranted. 11. Other items requiring repair or replacement on Plaintiff’s home included, replacement of scratched window glass on a number of windows which were damaged by Defendant during his attempt to clean off paint over- spray, installation of a specified septic system pipe, refinishing procedure on the front entry doors, securing of loose wooden steps. 12. It is important to note that although Defendant contends that Plaintiff’s bids are excessive, he failed to present any bids from other contractors to support his position. 13. The weight of the evidence of record was sufficient to support a finding that the aforementioned replacement of the decking and the interior woodwork and interior doors alone would constitute a cost to Plaintiff in excess of $20,000.00. Based on all of the salient facts and circumstances presented herein, it is adjudicated and determined that Plaintiff should be awarded a payout from the Contractors’ Recovery Fund in the amount of $20,000.00.

CONCLUSIONS OF LAW

1. Plaintiff is an injured person 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 Plaintiffs 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 $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 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 $20,000.00 Done this day, May 19, 1998.

_______________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________

-----------------------

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