ALJDEC

98F-250-ROC · Registrar of Contractors · 1998-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 1998 APPEARANCES: Plaintiff appeared on his own behalf and Defendant was represented by his attorney, Tom Chauncey. The Contractors’ Recovery Fund was not represented at the hearing. 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 as a direct result of Defendant’s failure to comply with the terms and conditions contained in the prior license disciplinary proceeding brought by Plaintiff against Defendant in Registrar of Contractors’ case number 96-2773. Such revocation is determined to render this Defendant unable or unwilling 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, subsequent to Defendant’s receipt of the notice of claim for an administrative payout from the Contractors’ Recovery Fund. 4. Plaintiff seeks to recover the sum of $3,174.33 from the fund. 5. At the outset of the scheduled hearing, Plaintiff averred that he was only seeking a payout from the Contractors’ Recovery Fund for the purpose of replacing the defective floor tile installation in his home. In this regard, he received three bids from licensed contractors for the removal and replacement of the tile installed by Defendant. 6. A jobsite inspection by the appointed inspector for the Contractors’ Recovery Fund was held. The inspector found all of the three bids supplied by Plaintiff to be excessive, for the reason that they all called for an upgrade over the type of tile originally installed in the home. 7. The aforementioned inspector for the Contractors’ Recovery Fund did a very thorough job of researching the reasonable cost to replace the tile in Plaintiff’s home and arrived at the following salient conclusions: a. As a result of his investigation of the claim and by calling the supplier of the tile in question, the inspector determined that the retail cost to obtain comparable replacement tile would be $2,325.60. This figure was not disputed by either party. b. The low bid for removal of the tile from the bids submitted by Plaintiff was shown to be $1,030.00. This figure was not disputed by either party. c. The low bid for transition strips, molding, and caulking was $126.00. This cost was not disputed by either party. d. The inspector determined that the normal industry charge to install the amount of tile at issue herein would come to a total of $1,710.00 (based on $3.00 per square foot). Neither party disputed this figure. e. Tax for the project, based on the inspector’s numbers, came to a total of $259.58. f. In light of the fact that Plaintiff never paid Defendant on the contract for the tile installation, which required payment of $2,276.85, the original contract price was deducted from the above stated costs to replace the defective tile installation. As a measure of Plaintiff’s damages, it is determined that this deduction from the costs for remedial work was proper. 8. Based on the foregoing, it is adjudicated and determined that the total sum of $3,174.33 represents a reasonable and proper award to Plaintiff from the Contractors’ Recovery Fund. 9. Defendant contends that Plaintiff is not entitled to an award from the Contractors’ Recovery Fund due to the fact that Plaintiff did not affirmatively state that he would replace the tile after receipt of an award from the Contractors’ Recovery Fund.

CONCLUSIONS OF LAW

1. Plaintiff is a person injured as that term is defined in A.R.S. § 32-1131 (3). 2. There is no requirement in the applicable law regarding the Contractors’ Recovery Fund which would mandate that an injured person must agree to complete the remedial work which serves as the basis for his claim for a payout from the Contractors’ Recovery Fund. The mere fact that the value of his home is diminished by virtue of the substandard work at issue is sufficient to warrant a payout from the Contractors’ Recovery Fund, in order to compensate the injured person for the “actual damages” that he has sustained. 3. 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). 4. The within record supports an award to Plaintiff in the amount of $3,174.33, 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 the Order entered in this matter that the Registrar of Contractors shall commence and finalize payment procedures from the Contractors' Recovery Fund to Plaintiff in the amount of $3,174.33.

Done this day, July 20, 1998.

_______________________________ MARK A. SILVER Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 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