ALJDEC

99F-267-ROC · Registrar of Contractors · 1999-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 7, 1999 APPEARANCES: Janis Hollingshead, Plaintiff, in her own behalf Patti Shelton, Assistant Attorney General, on behalf of the State No one appeared on behalf of the Defendant ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings of Fact The Defendant’s Class C-42R license was revoked by the Registrar of Contractors on September 28, 1998, in Case No. L98-0283. On September 29, 1998, the Plaintiffs, residents of Lake Havasu City, and the Defendant entered a contract whereby the Defendant was to prepare the Plaintiffs’ roof and apply two coats of elastomeric to the roof. The Plaintiffs paid a total of $1,542.00 to the Defendant who did no work on the Plaintiffs’ home. The Plaintiffs submitted a claim to the Residential Contractors’ Recovery Fund (Fund) in the amount of $1,542.00. By letter dated December 1, 1998, the Fund informed the Plaintiffs it would not pay on their claim because at the time the Plaintiffs entered the contract with the Defendant, the Defendant’s license was revoked. The Plaintiffs requested a hearing on the denial. The case was to be heard in Phoenix, Arizona on April 7, 1999. By letter dated March 14, 1999 (received by Office of Administrative Hearings on March 23, 1999), the Plaintiffs requested a change of venue (impliedly also a continuance) to Lake Havasu City because of the age of Plaintiff Dr. Ervon Hollingshead (age 85), who also had a bad back. By Order dated March 25, 1999, and in light of the limited issues of fact to be determined, the Administrative Law Judge allowed the Plaintiffs to appear at the scheduled hearing by telephone. On March 25, 1999, the Plaintiff Dr. Ervon Hollingshead, died. On April 5, 1999, a motion to continue the hearing and for a change of venue to Lake Havasu City was received from the decedent’s wife, Plaintiff Janis Hollingshead. Mrs. Hollingshead also requested subpoena forms. She was informed by Office of Administrative Hearings’ staff that her motion would be granted but nonetheless she was requested to attend a prehearing conference by telephone at the time scheduled for the hearing in order to determine future action on the case. At the date and time set for the hearing (prehearing) with the Plaintiff Janis Hollingshead appearing by telephone and Assistant Attorney General, Patti Shelton present on behalf of the State, and based on the uncontested evidence, Findings of Fact paragraphs 1 and 2 were established. Mrs. Hollingshead was informed of the law relating to the issue of denial of recovery from the Fund. She was asked if she wished to have the matter set for further hearing. The Plaintiff declined further hearing and the record closed. Conclusions of Law A.R.S. §32-1154(E) provides:

“E. Notwithstanding any other provisions in this chapter, if a contractor’s license has been revoked or has been suspended as a result of an order to remedy a violation of this chapter, and the contractor refuses or is unable to comply with order of the registrar to remedy the violation, the registrar may order payment from the residential contractors’ recovery fund to remedy the violation.” . . . . . . A.R.S. §32-1132(A) provides in pertinent part that: “…except that an award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of residential contractor whose license was…revoked…pursuant to §32-1154 subsection at the time of the contract.”

The facts of the case are not in dispute. The Defendant contractor was revoked on September 28, 1998 and the contract was entered into between the parties one day later on September 29, 1998. Given these facts, the law is clear and the Administrative Law Judge cannot alter the outcome. Recommended Order In view of the foregoing, it is recommended that the denial of payment to the Plaintiffs from the Residential Contractors’ Recovery Fund be affirmed. Done this day, April 8, 1999

______________________________________ ALLEN REED Administrative Law Judge

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

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

By ___________________________

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

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