ALJDEC

98F-236-ROC · Registrar of Contractors · 1998-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

| |§| | |PAULA BLOUNT, |§|CASE NO.: 98/236 | | |§| | |Plaintiff, |§|DOCKET NO.: 98F-236-ROC | | |§| | |-v- |§|RECOMMENDED | | |§|DECISION AND ORDER | |License No. 114154, Class B- of |§| | |SILVERADO CONSTRUCTION, INC., |§| | | |§| | |Defendant. |§| | | |§| | | |§| | | |§| |

HEARING: April 27, 1998, at 1:30 p.m. APPEARANCES: The Plaintiff appeared on her own behalf. The Respondent appeared through its attorney, Kenneth Sondgeroth. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on April 27, 1998. The Plaintiff appeared on her own behalf and the Respondent appeared through its attorney, Kenneth Sondgeroth. 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. At the onset of the recovery fund hearing, the Defendant moved to Dismiss the Plaintiff’s claim on the basis that the Defendant was not a licensed contractor at the time it entered into a construction agreement with the Plaintiff. The Defendant’s Motion was taken under advisement.

2. There was no dispute that at the date the parties signed their written agreement both parties had full knowledge that the Defendant was waiting for its contracting license to be issued and both parties agreed to sign the agreement so that work could commence as soon as the Defendant’s contracting license was issued.

3. Credible evidence, presented at hearing, established that, in accordance with the parties’ agreement at the time the written construction agreement was signed, the Defendant did not begin any construction activity at the Plaintiff’s residence until after its Class B License had been issued by the Registrar of Contractors.

4. In view of the undisputed fact that the Defendant was a licensed contractor at the time when he actually performed construction work at the Plaintiff’s residence, it is recommended that the Defendant’s Motion to Dismiss be denied.

5. Based upon the credible evidence of record, it is found that the Plaintiff is a “person injured” as defined by statute and is entitled to receive payment from the Contractors’ Recovery Fund for actual damages sustained as a result of the Defendant’s acts or omissions.

6. The Defendant’s Class B License was suspended on September 9, 1997, for the Defendant’s failure to comply with the Registrar’s Order issued in case number H97-0059. Case number H97-0059 involved a complaint by the Plaintiff against the Defendant’s Class B License and was fully litigated at a prior hearing between these same parties. In addition to the license suspension imposed on the Defendant’s license for its failure to comply with an Order of the Registrar of Contractors, the Defendant’s Class B license was automatically suspended on April 16, 1998, for the Defendant’s failure to maintain a required bond. The dual suspension of the Defendant’s license 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.

7. The Plaintiff submitted three bids for the removal and replacement of the room addition, deck and garage for the Plaintiff’s residence. The three bids range from $69,500.00 to $98,000.00. The assigned agency inspector testified that all three bids seemed to be excessive and that he felt that it should be possible to correct the room addition, garage and deck rather than remove and replace the room addition, garage, and deck.

8. The prior Order of the Registrar of Contractors provides for the active suspension of the Defendant’s Class B License until it performs designated corrective action on the room addition, garage and deck. The prior Order of the Registrar of Contractors does not order the demolition and replacement of the room addition, garage and deck.

9. There was no dispute that the original contract price for the construction of the room addition, garage and deck was less than $25,000.00.

10. Credible evidence, presented at hearing, established that the cost of corrective action to the room addition, garage and deck may exceed the maximum amount payable from the Contractors’ Recovery Fund. However, there was insufficient credible evidence of record to support an adjudication of a proper and reasonable amount payable to the Plaintiff from the Contractors’ Recovery Fund for required corrective action on the Plaintiff’s residence.

11. It found that the Plaintiff should solicit and submit bids to the Registrar of Contractors for the corrective work on the Plaintiff’s residence as set forth in the prior Order of the Registrar of Contractors. If the Plaintiff is unable to locate licensed contractors to submit bids for the directed corrective action, then the Plaintiff shall submit a list of all contractors contacted along with their refusals to perform corrective work on the Plaintiff’s residence.

CONCLUSIONS OF LAW

1. Under the facts and circumstances of this matter, 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. A.R.S. §32-1132(A), provides, in part, as follows: “An award from the (Contractors’ Recovery) fund is limited to the actual damages suffered by claimant as a direct result of the residential contractor’s violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance…”.

3. The credible evidence of record is insufficient, at this time, to support an adjudication, of an award of a definite sum to the Plaintiff for actual damages caused by the Defendant’s errors and or omissions.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Registrar of Contractors deny payment from the Contractors’ Recovery Fund to the Plaintiff at this time.

It is further recommended that this matter not be closed and that the Registrar of Contractors allow the Plaintiff to supplement her request for payment from the Contractors’ Recovery Fund by submitting bids for corrective work on the room addition, garage, and deck, rather than for removal and replacement, as set forth in the prior Order of the Registrar of Contractors and that upon receipt of such bids for required corrective work that the Registrar of Contractors shall re-commence normal procedures for payment from the Contractors’ Recovery Fund.

Dated this 15th day of May, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of May, 1998 to:

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

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