ALJDEC decisions subject to certification as final

09F-RF1025-ROC · Registrar of Contractors · 2010-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2010 at 8:00 a.m. APPEARANCES: The Plaintiffs failed to appear. The Defendant failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Montgomery Lee. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Plaintiffs failed to present any evidence at the hearing in support of their claim for damages from the Contractors’ Recovery Fund.

CONCLUSIONS OF LAW

1. The Plaintiffs have the burden of demonstrating by a preponderance of the evidence that they qualify for payment from the Contractors’ Recovery Fund and that payment for damages should be paid from the Contractors’ Recovery Fund. See Culpepper v. State of Arizona, 187 Ariz. 431, 437- 38, 930 P.2d 508 (Ariz. App. 1996). 2. 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). 3. 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). 4. A.R.S. §32-1132(A) provides, in pertinent part, as follows: The residential contractors’ recovery fund is established, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that 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 thirty 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. 5. The Plaintiffs, by the aforementioned default in appearance at the hearing for this matter, failed to sustain the required burden of proving their claim for damages from the Contractors’ Recovery Fund by a preponderance of relevant, substantial and probative evidence and, consequently, the credible evidence of record does not support any findings that any payment from the Contractors’ Recovery Fund should be made to the Plaintiffs.

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, January 6, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to: William A. Mundell, Director Registrar of Contractors -----------------------

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