ALJDEC

98F-327-ROC · Registrar of Contractors · 1998-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On August 5, 1998, a hearing was held to determine if the Plaintiff is entitled to an award of damages from the Residential Contractors’ Recovery Fund pursuant to A.R.S. §§ 32-1154(E) & 32-1132(A). Plaintiff Tom Visco (the “Plaintiff”) appeared on his own behalf. The Defendant failed to appear. The record was kept open until approximately 10:00 a.m. to allow for the appearance of the Defendant or the receipt of any information which would constitute good cause for the Defendant’s absence or delay. No such information was received from or on the behalf of the Defendant. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. The Defendant failed to appear for the recovery fund payout hearing scheduled on August 5, 1998, at 9:00 a.m. at the Office of Administrative Hearings located at 1700 West Washington Street, Suite 602, Phoenix, Arizona. The Notice of Recovery Fund Payout Hearing correctly states the date, time and place of this hearing. The Notice of Recovery Fund Payout Hearing was sent by certified mail to three different addresses belonging to the Defendant (as stated in the Notice of Recovery Fund Payout Hearing received by the Office of Administrative Hearings). The undersigned Administrative Law Judge finds that the Defendant was properly noticed for this hearing.

2. On or about August 9, 1996, the Plaintiff and the Defendant entered into a Construction Contract and Agreement for Sale (the "Contract"). Pursuant to the Contract, the Defendant agreed to build a home (the “Home”) for the Plaintiff at 10277 E. Shangri La, Phoenix, Arizona.

3. The Contract price for the Home was approximately $371,100.00. The Plaintiff testified that the Defendant promised him that the Home would take about five months to build. The Plaintiff testified that the Defendant eventually pushed back the completion (or move-in) date to April of 1997.

4. The Plaintiff testified that the Home was not completed in April of 1997. The Plaintiff testified that he had already sold his previous home in anticipation of moving into the new Home in April of 1997. The Plaintiff testified that he and his wife were allowed to rent their prior home for the month of April.

5. The Plaintiff testified that the Defendant promised that the Home would be completed in May of 1997. The Home was not completed in May of 1997. The Plaintiff testified that the Defendant promised that the Home would be completed in June of 1997. Once again, the Home was not completed in June of 1997. The Plaintiff testified that their landlord (who purchased their prior home) insisted that the Plaintiff and his wife move from their prior home by July 1, 1997. Apparently, the landlord was waiting for the Plaintiff to depart so that he could move into the Plaintiff’s prior home.

6. The Plaintiff testified that he and his wife were forced to live in a hotel until July 8, 1997 because the Home was still unfinished. The Plaintiff testified that he and his wife finally moved into the unfinished Home on July 8, 1997. The Plaintiff testified that the Home was barely habitable.

7. The Plaintiff testified that the Defendant last appeared at the Home on June 28, 1997. The Plaintiff testified that the Defendant abandoned the Contract even though the Home was still unfinished.

8. The Plaintiff testified that he has paid subcontractors $82,053.37 to repair and complete the Home since the Defendant abandoned the Contract. The Plaintiff testified that the Home is still unfinished but he cannot afford at this time to completely repair and finish the Home.

9. The Plaintiff testified that the Defendant’s work was of a poor quality and incomplete. The Plaintiff testified that he had to spend money to install, complete or repair the floor tile, appliances, plumbing fixtures, lights, walls, painting, patios, driveway, bathroom trim, sprinklers, A/C unit, cabinets, utility lines, baseboards, cleaning, and etc. The Plaintiff presented pictures of the Home to the undersigned Administrative Law Judge clearly showing the poor quality of the Defendant’s work.

10. John Ratcliffe, a Construction Inspector for the Registrar of Contractors (the “ROC”), testified that he reviewed the Plaintiff’s receipts regarding the expenses incurred by the Plaintiffs in completing or repairing the Home. Inspector Ratcliffe testified that the amounts paid were necessary and reasonable. Inspector Ratcliffe recommended that the Plaintiff receive $20,000.00 from the Residential Contractors’ Recovery Fund.

11. The Plaintiff previously filed a Complaint with the ROC on May 6, 1997. A disciplinary hearing was set for October 17, 1997 at the Office of Administrative Hearings. However, the ROC vacated this hearing because the Defendant's license was already revoked in two prior cases.

12. In January of 1998, the Plaintiff filed a request for an award of damages in the amount of $20,000.00 from the Residential Contractors’ Recovery Fund.

13. The undersigned Administrative Law Judge finds that the Defendant wrongfully abandoned the Contract. The undersigned Administrative Law Judge further finds that the Defendant did not construct the Home in a professional and workmanlike manner. The undersigned Administrative Law Judge also finds that the Defendant’s abandonment and poor workmanship substantially injured the Plaintiff both financially and emotionally.

CONCLUSIONS OF LAW

1. The Plaintiff has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. To recover from the Residential Contractors’ Recovery Fund, A.R.S. §32- 1132(A) requires at a minimum the following: A. The Defendant's actions must violate Chapter 10 ("Chapter"), Title of the Arizona Revised Statutes (and any rules adopted pursuant to this Chapter). B. The Plaintiff must be an owner, tenant in common or joint tenant of the Home who is damaged by the failure of the Defendant to adequately build or improve the Home. See A.R.S. §32-1131(3). C. The Plaintiff must suffer actual damages not to exceed "an amount necessary to complete or repair” the Home.

3. The Plaintiff has met the burden of proving that the Defendant has violated A.R.S. §32-1154(A)(1)(3) & (7). The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Defendant has violated A.R.S. §32-1154(A)(1)(3) & (7) as set forth in Findings of Fact #13.

4. The Plaintiff has met the burden of proving by a preponderance of the evidence that he owns the Home and has suffered actual damages in excess of $20,000.00 (that do not exceed an amount necessary to complete and repair the Home).

5. The Defendant has failed to appear and present evidence supporting his position.

6. Based upon the foregoing, the undersigned Administrative Law Judge finds that the Plaintiff is entitled to payment from the Residential Contractors’ Recovery Fund in the amount of $20,000.00. RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge respectfully recommends that the Plaintiff be awarded payment in the amount of $20,000.00 from the Residential Contractors’ Recovery Fund.

Done this day, August 5, 1998.

_________________________________ Casey J. Newcomb Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By _______________________________

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