ALJDEC

00F-RF0256-ROC · Registrar of Contractors · 2001-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2001, at 8:30 a.m. APPEARANCES: The Plaintiff appeared through his attorney, Karl MacOmber. The Defendant appeared through its authorized representative, Marcy Boak. The Registrar of Contractors appeared through Assistant Attorney General, Eva Bacal. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

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. The Defendant’s contracting license has been previously revoked by Order of the Registrar of Contractors. Such revocation is determined to render this Defendant unable to remedy the violations of the State’s contracting laws which gave rise to the instant claim for damages. 2. The Plaintiff filed the instant claim for damages from the Contractors’ Recovery Fund on December 30, 1999. Pursuant to the filing of the formal claim, an assigned agency inspector conducted an on-site inspection of the subject premises. 3. The assigned agency inspector found that the residence was occupied by a group home and had been so occupied since the month of October, 1999. The assigned agency inspector then recommended that the Plaintiff’s claim for damages be denied on the basis that the Plaintiff was not an “owner-occupant” as defined by statute. 4. The Contractors’ Recovery Fund then denied the Plaintiff’s claim for damages on September 20, 2000 on the basis that the Plaintiff was not an owner-occupant as required by applicable statute. 5. On September 27, 2000 the Plaintiff requested a formal hearing. 6. There was no dispute that the residence at issue has been rented to a group home since the month of October, 1999 and that the residence is currently rented to, and occupied by, the same group home. 7. The actual occupation of the residence by the group home for a period of over a year is found to establish that the residence is finished to the point that it can be occupied. 8. The Plaintiff testified that he “intends” to occupy the residence if required to do so in order to obtain payment from the Contractors’ Recovery Fund and that the only reason that the residence had been rented to the group home was the delay caused by the Defendant’s appeal of the prior disciplinary proceeding. 9. Credible evidence of record established that the appeal from the prior disciplinary hearing was dismissed on January 6, 2000. 10. Based upon credible testimony and evidence produced at hearing, it is found that the Plaintiff was not an occupant of the residence located at 4740 E. Bermuda, Tucson, AZ, when the Plaintiff’s claim for damages was filed and that the Plaintiff was not an occupant of the residence on the date of the hearing (February 14, 2001) and that the residence has been continuously utilized as a rental property from October 1999 through February 14, 2001. CONCLUSIONS OF LAW 1. A.R.S. §32-1132(A) provides, in part, as follows: “There is established the residential contractors’ recovery fund,…, 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 award 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. …,” 2. A.R.S. §32-1131 (3) provides, in part, as follows: “person injured” means any owner of residential real property which is classified as class five property… and which is actually occupied or intended to be occupied by the owner as a residence…” . 3. The credible testimony and evidence of record does not support a finding that the Plaintiff is an “injured person” as defined by statute. 4. The credible testimony and evidence of record does not support a finding that the Plaintiff is eligible to receive payment from the Contractors’ Recovery Fund.. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors affirm the actions of the Contractors’ Recovery Fund and deny the Plaintiff’s claim for damages from the Contractors’ Recovery Fund on the basis that the Plaintiff is not an owner-occupant and fails to qualify as an “injured person” as defined by statute and that the Plaintiff’s claim be denied and dismissed. Done this day, February 22nd, 2001.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of February, 2001, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488