ALJDEC decisions subject to certification as final

2009A-7091013-ROC · Registrar of Contractors · 2010-07-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 2010

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife; no one appeared on behalf of Respondent; Assistant Attorney General Camila Alarcon appeared for the Residential Contractors’ Recovery Fund. ROC Inspector Bill Redman was available to testify by telephone.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Bennie Greene seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by defective workmanship of Respondent GMF Builders, Inc. As noted above, Respondent did not appear. This tribunal entered the claim file received from the Registrar of Contractors into the record. Complainant confirmed that the documentation was complete and an accurate presentation of his claim. Ms. Alarcon stated that the Fund did not disagree with Inspector Redman’s recommendation. Complainant stated that he agreed with the recommendation as well. Therefore, the parties agreed that the decision could be made based on the claim file. Inspector Redman did not testify. Based upon that record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision for payout in the amount of $20,843.43.

FINDINGS OF FACT 1. Respondent GMF Builders, Inc. is the holder of a class B- general residential contractor license (No. 075098) issued by the Registrar of Contractors (“ROC”). Gilbert Franco is Respondent’s Qualifying Party. The license was revoked in April 2009 for failure to comply with an ROC order. 2. Complainant made a claim to the Fund in May 2009 for the cost of corrective work needed because of Respondent’s poor workmanship. Complainant obtained three bids and is seeking $22,900.00 from the Fund to cover the costs of repairs.[1] 3. ROC Inspector Bill Redman filed a report in March 2010 in which he listed the bids and noted that Complainant has received a payout from the Fund in another matter for the same property in the amount of $9,156.57. Therefore, he noted, the maximum payout remaining for Complainant is $20,843.43, an amount that is lower than all three bids. 4. Inspector Redman recommends payout in the amount of $20,843.43. 5. Neither the Fund nor Complainant object to the Inspector’s recommendation. Respondent did not appear and, therefore, has waived any objection. 6. The record supports the recommended payout of $20,843.43. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that the claim meets the requirements for payout from the Fund.[4] Complainant has met that burden. 2. Complainant is an injured person within the definition in A.R.S. § 32-1131(3). 3. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award an appropriate payment to Complainant from the Fund pursuant to A.R.S. §§ 32-1132 and 32-1154(F). There is a cap of $30,000 for recovery from the Fund.[5] 4. Respondent caused the injuries to Complainant by poor workmanship. 5. The evidence of record supports an award to Complainant in the amount of $20,843.43, all of which shall be chargeable against Complainant and any other persons on the license as set forth in A.R.S. § 32-1139(B). RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors make payment from the Residential Contractors’ Recovery Fund to Complainant in the amount of $20,843.43 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, July 9, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This is according to the claim filed May 26, 2009. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949); Arizona Administrative Code (A.A.C.), OAH Rule R2-19-119(B). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] A.R.S. § 32-1132(A).

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