ALJDEC

98F-324-ROC · Registrar of Contractors · 1998-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 6, 1998 APPEARANCES: Plaintiffs appeared on their own behalf and Defendant failed to appear. The Registrar of Contractors was represented by Assistant Attorney General, Montgomery Lee. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. 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 Plaintiffs’ claim for an administrative payout from the Contractors’ Recovery Fund. 3. This hearing was convened following Plaintiffs’ express request therefor, subsequent to denial of their claim by the Contractors’ Recovery Fund.

4. Plaintiffs seek to recover the sum of $1,250.00 from the fund. 5. The following salient facts were adduced at the hearing and are important to note: a. Plaintiffs had certain siding work performed on their home by a licensed contractor, AAA Siding (hereinafter referred to as “AAA”). Upon completion of the work performed by AAA, Plaintiff inquired about having an aluminum carport awning constructed on their property. AAA referred Plaintiffs to Defendant for construction of the aluminum carport awning. b. Plaintiffs signed a contract with Defendant to have the aforementioned carport awning installed and, in conjunction therewith, presented Defendant with a downpayment in the total amount of $1,250.00. Defendant instructed Plaintiffs to leave the payee portion of the check blank and to merely sign the check and enter the amount of the payment. c. Apparently Defendant’s agent, that wrote up the contract in question, owed a Vickie Ahlstrom (hereinafter referred to as “Ahlstrom”) the sum of $250.00. Ahlstrom was, at the time in question, the “significant other” of AAA’s owner and qualifying party. Undisputed evidence of record demonstrated that Defendant inserted Ahlstrom’s name as payee on Plaintiff’s check and AAA then cashed the check in question, placed $250.00 in Ahlstrom’s account and issued a check for $1,000 payable to Luanne Caraway, an individual identified as the “significant other” of Defendant’s agent that entered into the contract at issue herein. d. Plaintiffs never received any work or materials for the downpayment presented to Defendant and, in fact, ultimately retained others to install the carport awning. e. Plaintiffs filed a complaint with the Registrar of Contractors regarding their loss of the $1,250.00 and their complaint was ultimately closed due to the fact that Defendant had previously been revoked on another matter. Ultimately, Plaintiffs filed the instant Contractors’ Recovery Fund claim. 6. Evidence of record established that Plaintiffs have sustained actual damages properly attributable to Defendant due to the fact that they paid Defendant $1,250.00 and received absolutely nothing in return. Thus, it is determined that Plaintiffs should be awarded a payout from the Contractors’ Recovery Fund in the amount of $1,250.00. 7. Notwithstanding the foregoing finding regarding the exposure of the Contractors’ Recovery Fund due to the wrongful act of Defendant, it must be noted that AAA, by participating in allowing Plaintiffs’ check to be made payable to an individual not employed by Defendant, cashing the check for Defendant’s agent, and issuing a check for the balance made payable to another non-employee of Defendant was acting in an improper and unethical manner, reflecting adversely on its character. Under all of the salient facts and circumstances presented herein, the Registrar of Contractors may wish to consider a further investigation of AAA’s role in this matter.

CONCLUSIONS OF LAW

1. Plaintiffs are injured persons 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 Plaintiffs in the amount of $1,250.00 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 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 $1,250.00.

Done this day, August 11, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of August, 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