ALJDEC

02F-RF0224-ROC · Registrar of Contractors · 2002-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 8, 2002; at 1:30 p.m. APPEARANCES: Plaintiff appeared through Sergio Lopez. The Defendant appeared through its attorney, Stuart L. Fauver. 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 Plaintiff is found to be an “injured person” as defined by statute and is found to be entitled to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of the Defendant’s acts or omissions. 2. 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. 3. After repeated review it is found that the credible evidence of record is insufficient and fails to establish the Plaintiff’s actual damages in this matter. 4. In view of the fact that actual damages were not sufficiently established no recommendation for payment of actual damages from the Contractors’ Recovery Fund can be made. CONCLUSIONS OF LAW 1. A.R.S. Section 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. An award from the fund is limited to the actual damages suffered by the claimant as a direct result of the residential contractor’s violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines…,” 2. The Registrar of Contractors can not award payment to the Plaintiff from the Contractors’ Recovery Fund unless actual damages are sufficiently established. 3. The credible evidence of record is insufficient to support a finding of Plaintiff’s actual damages and fails to support an award from the Contractors’ Recovery Fund to the Plaintiff. 4. Plaintiff has the burden of demonstrating by a preponderance of the evidence Plaintiff’s actual damages. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990).

RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors deny the Plaintiff’s claim for damages from the Contractors’ Recovery Fund and that this matter be dismissed.

Done this day, May 31, 2002

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2002, to:

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

By ___________________________

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