ALJDEC decisions subject to certification as final

2009A-5899365-ROC · Registrar of Contractors · 2012-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 30, 2012

APPEARANCES: Complainant was represented by attorney Craig L. Armstrong, Esq.; Respondent did not appear; the Residential Contractors’ Recovery Fund intervened in this matter and was represented by Assistant Attorney General John Tellier, accompanied by Recovery Fund Supervisor Eric Ulinger.

WITNESSES: None

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by Respondent. The Fund appeared through Assistant Attorney General John Tellier and challenged Complainant’s eligibility for payout from the Fund based on a finding that Respondent’s license was suspended at the time of the contract with Complainant and at the time of injury. The only issue for which the parties were given notice and for which the hearing was held is Complainant’s eligibility. That is the only issue addressed herein. This tribunal entered the claim file received from the Registrar of Contractors into the record, as well as marked and admitted Exhibits 1 through 9, submitted by the Fund. The parties stipulated that this case should be decided based on the documentary record, and called no witnesses. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Complainant to be ineligible for recovery from the Fund because Respondent’s license was suspended at the time of contract and at the time of injury. FINDINGS OF FACT 1. Respondent was the holder of License No: K-42.197231-D. That license was revoked in April 2010. 2. According to ROC records, Respondent’s license was suspended for non-renewal from July 1, 2008 through June 30, 2009, at which time it expired.[1] 3. The parties agree that Complainant and Respondent entered into the contracts at issue on July 13, 2008.[2] 4. The record of the underlying complaint by Complainant against Respondent shows that no injuries occurred until after the contracts were entered into on July 13, 2008. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, in this matter Complainant bears the burden of showing, by a preponderance of the evidence, that Complainant is eligible for recovery from the Fund.[5] Complainant has not met that burden. 2. A.R.S. § 32-1132(A) provides, in part, that “[a]n award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of a residential contractor who was not licensed pursuant to this chapter or whose license was in an inactive status, expired, cancelled, revoked, suspended or not issued at the time of the contract.”[6] Thus, persons injured by a contractor with a suspended license are not eligible for recovery from the Fund.[7] 3. The evidence shows that Respondent’s license was suspended from July 1, 2008, to June 30, 2009. Complainant entered into contracts with Respondent on July 13, 2008, while the license was suspended. Also, the injuries that occurred to Complainant occurred after July 13, 2008, while Respondent’s license was suspended. 4. Because Respondent’s license was suspended at the time of the contracts and at the time of the injuries, Complainant is not eligible for recovery from the Fund. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors maintain the conclusion that Spanish Trail Council Of Co-Owners is not eligible for recovery from the Fund.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Decision will be 40 days from the date of that certification.

Done this day, November 16, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Exhibit 4. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949); A.A.C. R2-19-119(B). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [6] Sixth sentence. [7] They may have other avenues of redress.

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