ALJDEC decisions subject to certification as final

2009A-7090978-ROC · Registrar of Contractors · 2011-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 25, 2011, at 8:00 a.m. APPEARANCES: The Complainants failed to appear. The Respondent 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. On January 14, 2011, the Recovery Fund Administrator issued a Notice to Claimant of Recovery Fund Ineligibility. 2. The Notice to Claimant of Recovery Fund Ineligibility informed the Complainants that they failed to meet the legal requirements of A.R.S. § 32-1131.3, that require that a “person injured” must own and occupy or intend to occupy the subject property. 3. The Complainants disagreed with the ineligibility determination and requested an administrative hearing. 4. The Notice to Claimant of Recovery Fund Ineligibility gave the Complainants written notice that they bore the burden of proof to establish eligibility for payment from the Contractors’ Recovery Fund pursuant to A.R.S. § 32-1131. 5. The Complainants failed to present any evidence at the hearing in support of the Complainants’ claim of eligibility for payment from the Contractors’ Recovery Fund. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that they are eligible for payment from the Contractors’ Recovery Fund pursuant to A.R.S. § 32-1131. 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. Proof by preponderance of the evidence “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. The Complainants, by the aforementioned default in appearance at the hearing for this matter, failed to sustain the required burden of proving their eligibility for payment from the Contractors’ Recovery Fund pursuant to A.R.S. § 32-1131. RECOMMENDed order In view of the foregoing, it is recommended that the ineligibility determination by the Contractors’ Recovery Fund be upheld. 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, May 25, 2011.

/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