ALJDEC

98F-232-ROC · Registrar of Contractors · 1998-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|MONROE MURAOKA, |§|CASE NO.: 98/232 | | |§| | |Plaintiff, |§|DOCKET NO.: 98F-232-ROC | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 099909, Class B- of |§|DECISION AND ORDER | |VERSATECH CONSTRUCTION, INC., |§| | | |§| | |Defendant. |§| | | |§| |

HEARING: December 11, 1998, at 1:30 p.m. APPEARANCES: The Plaintiff appeared on his own behalf. The Defendant failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Marjorie Becklund. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on December 11, 1998, pursuant to notice duly sent to all parties. The Plaintiff appeared on his own behalf. The Defendant failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Marjorie Becklund. 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. There was no dispute that the Plaintiff is an “injured person” as defined by statute and is entitled to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of Defendant’s acts or omissions.

2. Credible evidence established that the Defendant’s contracting license has been previously revoked by the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violations of the State’s contracting laws which gave rise to the instant claim for damages.

3. There was no dispute that the Plaintiff is entitled to a payment from the Contractors’ Recovery Fund in the sum of $120.00 for the cost of correcting water damage in the interior of the plaintiff’s residence.

4. However, the parties were in sharp disagreement as to whether the Plaintiff was entitled to payment from the Contractors’ Recovery Fund for the construction of a metal covering for the two parking spaces allotted to him.

5. The dispute was not over the low bid of $2,662.00 for cost of the construction of the metal covering for the two spaces allotted to the Plaintiff nor was there a dispute over the fact that the Defendant was responsible for the construction of the metal covering for the two parking spaces permanently assigned to the Plaintiff.

6. The dispute was based upon the undisputed fact that the Plaintiff’s Homeowners Association had already filed a claim for payment from the Contractors’ Recovery Fund and that the claim included a bid for the construction of metal coverings over all of the unfinished parking spaces in the Kenyon Terrace project.

7. The Homeowners Association had claimed that the parking spaces and the metal coverings for the parking spaces were a “common” area and that, as such, the Homeowners’ Association was entitled to payment from the Contractors’ Recovery Fund for the cost of constructing the metal coverings for the unfinished carports.

8. The Homeowners Association’s claim for damages totaled $30,511.87 and the Contractors’ Recovery Fund paid out the maximum sum of $20,000.00 for the claim for damages.

9. Credible evidence established that the low bid for the cost of constructing all of the metal coverings for the unfinished parking spaces was the sum of $8,500.00 plus tax of approximately $400.00, for a total of cost of approximately $8,900.00.

10. After receiving the $20,000.00 pay-out the Homeowners Association then allocated the money to pay for the cost completing of the landscaping, paving, masonry walls, and electrical work in the housing project.

11. Credible evidence established that the Homeowners Association then informed the individual homeowners who did not have metal coverings on their assigned parking spaces that they would have to file their own claims against the Contractors’ Recovery Fund for the construction of the metal coverings on their assigned parking spaces.

12. The actions of the Homeowners Association in claiming the unfinished parking spaces as common areas and then deciding, after receiving payment for its claim, that the parking spaces were private areas and directing the individual homeowners to file their own claims against the Contractors’ Recovery Fund, were shown to be, at best, disingenuous.

13. Credible evidence established that the Plaintiff was not personally involved in the actions of the Homeowners Association and had not given any consent to the Homeowners Association to pursue a claim for damages for his unfinished parking spaces on his behalf.

14. There was no evidence of any action or conduct by the Plaintiff that would preclude the Plaintiff from filing a claim for damages against the Contractors’ Recovery Fund.

15. Credible evidence, presented at hearing, established that the parking spaces are located adjacent to the individual residences and are permanently assigned to individual residences and that the cost of the metal coverings for two assigned parking spaces was an integral part of the purchase price of each residence.

16. Based upon credible evidence, presented at hearing, it is found that the parking spaces, and the metal coverings for the parking spaces in the Kenyon Terrace residential construction project, do qualify as private areas and that the Plaintiff is entitled to payment from the Contractors’ Recovery Fund for the construction of a metal covering over the two parking spaces assigned to the Plaintiff.

17. Credible evidence established that the Homeowners Association’s claim for damages less the low bid for the cost of installing metal coverings for the assigned parking spaces still exceeds the $20,000.00 payment which was paid to it.

18. In view of the fact that the Homeowners Association’s claim for damages still exceeds the amount actually paid to the Homeowners Association it is not recommended that the Registrar of Contractors pursue action against it.

19. Based upon credible evidence presented at hearing, it is found that a proper and reasonable amount payable to the Plaintiff from the Contractors’ Recovery Fund is the total sum of $2,782.00, representing the sum of $120.00 for the low bid for correcting water damage in the interior of the Plaintiff’s residence and the sum of $2,662.00 for the low bid for the construction of a metal awning over the two parking spaces permanently assigned to the Plaintiff.

CONCLUSIONS OF LAW

1. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award proper payment to the Plaintiff from the Contractors’ Recovery Fund pursuant to A.R.S. §32- 1154(E).

2. The credible evidence of record supports an award to the Plaintiff in the sum of $2,782.00 all of which shall be appropriately chargeable against the Defendant and/or persons on the Defendant’s 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 shall cause payment from the Contractors’ Recovery fund to the Plaintiff in the amount of $2,782.00 for damages.

Dated this 15th day of December, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of December, 1998 to:

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

Transmitted by:

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