ALJDEC decisions subject to certification as final

2009A-7090567-ROC · Registrar of Contractors · 2011-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 2010 APPEARANCES: Brett Thacker appeared personally. Experience Residential, L.L.C. did not appear. The Registrar of Contractors was represented by Assistant Attorney General Montgomery Lee. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Experience Residential, L.L.C. (“Respondent”) is the holder of License No. 212249, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. Brett Thacker (“Complainant”) contracted with Respondent for a home construction project. 3. On December 7, 2007, Complainant filed a Complaint with the Registrar alleging statutory and regulatory violations by Respondent. The Registrar designated the Complaint as Case No. A08-0238. 4. The Registrar issued a Default Decision and Order in Case No. A08-0238 that suspended Respondent’s contracting license. 5. The Registrar is the administrator of the Residential Contractors’ Recovery Fund (“Fund”). Eligible injured persons may make a claim for either an administrative or judicial payout from the Fund for damages caused by a residential contractor. 6. Complainant filed a claim with the Registrar seeking an administrative payout from the Fund for damages caused by Respondent. The Registrar originally designated Complainant’s claim as Case RF09-0567, but later re-designated the claim as Case No. 2009-7090567. 7. After reviewing Complainant’s claim, the Registrar determined that Complainant completed the project for an amount less than the original contract price with Respondent, and, therefore, suffered no damages eligible for payout from the Fund. 8. Complainant appealed the Registrar’s denial of his claim. 9. The Registrar forwarded Complainant’s claim to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. The Registrar issued a Notice of Recovery Fund Eligibility/Payout Hearing (“Notice”) advising the parties of the time, date, and location of the formal hearing. The Notice was sent to the parties at their addresses of record with the Registrar. 11. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 12. Complainant presented evidence in support of his claimed damages in the amount of $26,847.15. After consideration of the evidence presented at the hearing, the Registrar acknowledged that Complainant was damaged by Respondent in the amount of $3,197.15. That sum is determined to be supported by the evidence of record and is an amount eligible for an administrative payout to Complainant from the Fund. 13. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 212249 was revoked by the Registrar on October 3, 2010. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over the subject matter in this case, pursuant to A.R.S. § 32-1154(F). 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant is an injured person, as defined in A.R.S. § 32-1131(3). 4. The evidence of record supports an award to Complainant in the amount of $3,197.15, all of which shall be appropriately chargeable against Respondent and/or persons on the license as set forth in A.R.S. § 32- 1139(B). RECOMMENDED ORDER On the effective date of the Order entered in Case No. 2009-7090567, the Registrar shall commence and finalize payment procedures from the Fund to Complainant in the amount of $3,197.15 for damages. 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 Order will be 40 days from the date of that certification.

Done this day, March 30, 2011.

/s/ Brian Brendan Tully 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