ALJDEC

99F-257-ROC · Registrar of Contractors · 2000-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 2000. APPEARANCES: PLAINTIFF: Thomas Benton, on his own behalf. DEFENDANT: No one appeared. INTERVENOR: Registrar of Contractors Residential Recovery Fund, by Mary DeLaat Williams, Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter came to hearing on January 28, 2000, with the record held open through February 27, 2000, to determine whether Plaintiff is eligible to recover from the Residential Contractors’ Fund, and if so, the amount, pursuant to A.R.S. § 32-1132.A. 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 no. 107690, Class B, 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 residential contracting laws as previously determined and which gave rise to the instant claim for damages by Plaintiff Thomas Benton (Benton). 2. The Registrar of Contractors has received advance notification of the existence and amount of the claim of Plaintiff Benton for an administrative payout from the Contractors’ Recovery Fund (Fund). 3. This hearing was convened following express request for such by the Registrar of Contractors on September 10, 1999, subsequent to refusal to pay any monies on the claim by the Contractors’ Recovery Fund due to Benton’s insufficient verification and itemization of costs associated with the necessary repair and/or completion of the work done by Defendant relative to Benton’s carport. 4. The record was held open subsequent to hearing to allow Benton to procure additional itemization of specific repair costs and provide that information to the Assistant Attorney General representing the Fund in this matter. Subsequently, the Assistant Attorney General submitted the information she received from Benton with her NOTICE OF FILING ADDITIONAL DOCUMENTS TO SUPPLEMENT THE ADMINISTRATIVE RECORD. 5. On the basis of the testimony and evidence presented at hearing and documentation submitted thereafter while the record was held open, as well as administrative notice of certain documents compiled and maintained by the Registrar of Contractors, the following facts are found relevant to a determination of this issue: A. Thomas Benton is the owner and resident of a home at 934 South Magnolia, in Tucson, Arizona. B. Benton contracted to have Defendant (a licensed Arizona contractor at the time) perform remodeling of portions of the residence, certain of which work was complained of to the Registrar of Contractors, whose final Order determined that Defendant was responsible for any corrective action required to bring the carport into compliance with applicable building codes and within applicable industry standards. C. Defendant did not comply with the Registrar’s Order, and Defendant’s license was revoked. D. Benton then contracted with other licensed contractors for additional work, including but not limited to, repair and completion of the “carport” for which Defendant had been deemed responsible. E. Benton’s claim against the Contractor’s Recovery Fund was originally in the amount of $11,866.21, but was insufficiently itemized for a determination of the actual damages to Benton as a direct result of Defendant’s violation. F. Upon consideration of the information now extant in the record, and the credible testimony of Plaintiff Benton and the Registrar’s Inspector Richard Allen, the following costs are found to have been incurred by Benton to have the carport, and front porch – as deemed integral to the carport, completed and repaired:

$2368.80 Alan Bradley Roofing (35% of total $6768.00)[1] 4042.00 Jarcon Construction (as itemized for carport and front porch)[2] 253.18 Building Permit 94.95 Plywood 75.38 Skylight replacement ______________________ $6834.31 TOTAL

6. Therefore, actual damages to Plaintiff Benton and necessary to complete or repair the residential structure as a direct result of Defendant’s violation are found to be $6834.31.

APPLICABLE LAW A.R.S. §§ 32-1131 through 32-1140 provide for laws relating to the Residential Contractors’ Recovery Fund. In pertinent part, particular sections of that article state: A.R.S. § 32-1132: A. There is established the residential contractors' recovery fund, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor, which is in violation of this chapter or the rules adopted pursuant to this chapter, may be awarded in the county where the violation occurred an amount of not more than twenty thousand dollars for damages sustained by the act, representation, transaction or conduct. An award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines, except that an award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of a residential contractor whose license was in an inactive status, expired, canceled, revoked or suspended pursuant to section 32-1154, subsection A at the time of the contract. No more than the maximum individual award from the fund shall be made on any individual residence or to any injured person. Notwithstanding any other provision of law, monies in the contractors' recovery fund shall not be directly awarded for attorneys' fees or costs except in contested cases appealed to the superior court. (Emphasis added).

A.R.S. § 32-1131: In this article, unless the context otherwise requires: 1. "Assessment" means the contribution by a contractor to the residential contractors' recovery fund. 2. "Fund" means the residential contractors' recovery fund. 3. "Person injured" means any owner of residential real property which is classified as class five property under section 42-162, subsection A, paragraph 5 and which is actually occupied or intended to be occupied by the owner as a residence including community property, tenants in common or joint tenants who are damaged by the failure of a residential contractor or a dual licensed contractor to adequately build or improve a residential structure or appurtenance on that real property. Included in this definition are lessees of residential real property who contract directly with a residential contractor or indirectly with a subcontractor of that contractor and homeowners' or unit owners' associations after transfer of control from the builder or developer for damages to the common elements within the complex. 4. "Residential contractor" means a contractor as defined in section 32-1101 who is licensed to perform work on residential property pursuant to this chapter and who engages in residential contracting.

CONCLUSIONS OF LAW 1. 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). 2. The within record supports an award to Plaintiff in the amount of $6834.31, 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 that, on the effective date of this Order the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to Plaintiff in the amount of $6834.31. Done this day, March 13, 2000.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________ ----------------------- [1] See, January 10, 2000 correspondence of Alan Bradley Lundberg for Alan Bradley Roofing. [2] See, February 3, 2000 correspondence from Jarcon Construction.

-----------------------

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