ALJDEC

99F-243-ROC · Registrar of Contractors · 1999-06-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 1999. APPEARANCES: The Plaintiff appeared personally. The Defendant did not appear. The Residential Contractors’ Recovery Fund was represented by Assistant Attorney General Patti Shelton. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. This matter came on for hearing to determine if an award from the Residential Contractors’ Recovery Fund (“Fund”) to Plaintiff pursuant to A.R.S. § 32-1154(E) is justified by the evidence. 2. Plaintiff’s pending claim for an administrative payout from the Fund was denied by the Registrar of Contractors. The Registrar of Contractors administers the Fund. Plaintiff timely requested an administrative hearing of his claim denial. 3. Plaintiff had signed a written contract with the Defendant for the construction of a guest house on his property in the Desert Mountain subdivision in Scottsdale. 4. The total contract price was $33,600.00. 5. Plaintiff paid Defendant a down-payment in the amount of $3,600.00. 6. Defendant obtained the necessary building permit and paid the fee of $287.32. The Defendant also built footings and stem walls valued at $1,500.00. Plaintiff obtained a total value of $1,787.32 for the building permit and work performed by Defendant. 7. The Defendant then abandoned the project without justification and improperly retained the balance of $1,812.68 from the first payment. 8. Prior to abandoning the jobsite, Defendant hired a subcontractor to prepare and pour the concrete pad. Defendant was responsible for paying that subcontractor but did not do so. After completing the work, the subcontractor presented Plaintiff with a bill for the poured pad in the amount of $3,800.00. Plaintiff negotiated the bill down to $3,650.00 and then paid the subcontractor directly. 9. After Defendant abandoned the project, Plaintiff completed the project in the capacity of owner/builder. 10. Plaintiff subsequently filed a claim with the Fund for damages he sustained due to Defendant’s violations of the State’s contracting laws. 11. Plaintiff’s claim was properly denied by the Registrar because it covered expenses related to funds paid by Plaintiff to unlicensed contractors. The scope of work performed by the unlicensed contractors exceeded the handyman exemption. Therefore, those contractors were required to be licensed for the work they performed. 12. Plaintiff did present credible evidence establishing an entitlement to a payout from the Fund for the damages described in Findings of Fact Nos. and 8. 13. During the course of the Plaintiff’s testimony, the Registrar’s assigned agency inspector announced that, as a result of the evidence he had heard during the hearing, he would amend his recommendation to the Registrar to provide that Plaintiff be awarded the sum of $5,462.68 from the Fund for his damages described in Findings of Fact Nos. 7 and 8. The Plaintiff agreed to the inspector’s new recommendation. The Plaintiff waived his right to continue the hearing and to any other claim for damages in excess of the new recommended amount. The parties agreed to conclude the hearing and to present the Registrar with the settlement agreement. 14. Plaintiff is an “injured person” as defined in the statute and is entitled to receive payment from the Fund for the damages sustained as a result of Defendant’s acts or omissions as described in Findings of Fact Nos. 7 and 8. 15. Defendant’s contracting license has been previously revoked by Order of the Registrar of Contractors in another disciplinary proceeding. 16. Notice of the proposed administrative payout from the Fund has been sent to Defendant by certified mail directed to the latest address of record with the Registrar of Contractors. 17. It is determined that the sum of $5,462.68 represents a proper and reasonable amount payable to remedy the aforesaid violations by Defendant.

CONCLUSIONS OF LAW

1. The Registrar of Contractors is empowered to determine and award proper payment to the Plaintiff from the Residential Contractors’ Recovery Fund pursuant to A.R.S. § 32-1154(E) 2. The Registrar of Contractors’ prior denial of Plaintiff’s claim related to monies he paid to unlicensed contractors to complete the project is justified. 3. The policy of the law favors settlements of disputes and adverse parties should be free to adjust their differences by entering into agreements or stipulations of settlement which should be recognized and given effect by all tribunals. 4. The within record supports an award to Plaintiff in the amount of $5,462.68 as agreed upon during the hearing, all of which shall be appropriately chargeable against Defendant and/or persons on the license set forth in A.R.S. § 32-1139 (B).

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that the Registrar of Contractors shall commence and finalize payment procedures from the Residential Contractors’ Recovery Fund to Plaintiff in the amount of $5,462.68 for damages.

Done this day, June 9, 1999.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826