ALJDEC decisions subject to certification as final

2009A-7091039-ROC · Registrar of Contractors · 2010-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2010

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife; David Morgan appeared on behalf of Respondent; the Residential Contractors’ Recovery Fund did not intervene in this matter and did not appear. ROC Inspector Daryl McCloskey was present and testified.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant William Banes seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by defective workmanship of Respondent Morgan Development, Inc. Respondent appeared, but did not contest the specifics of Complainant’s claim. Respondent offered to pay the claim amount to Complainant by the end of the day. Complainant agreed, upon the contingency that if payment was not received by that time, the claim would not be withdrawn and the Administrative Law Judge would issue a decision on the merits of the claim. The hearing then went forward and an evidentiary record was made. On December 8, 2010, this tribunal received, by e-mail, a statement from Complainant stating that he did not receive any payment from Respondent. Respondent was given an opportunity to dispute that statement and did not respond. Therefore, this Administrative Law Judge Decision is hereby issued. This tribunal entered the claim file received from the Registrar of Contractors into the record, along with Complainant’s pre-marked Exhibits C1 through C5.[1] Respondent did not submit any evidence. Complainant stated that he agreed with the recommendation for payout made by Inspector McCloskey. Therefore, none of the evidence or testimony was contested. Based upon the record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision for payout in the amount of $5,845.01. FINDINGS OF FACT 1. Respondent Morgan Development, Inc. is the holder of license B.131137-R, a class B general residential contractor license issued by the Registrar of Contractors (“ROC”). David Morgan is Respondent’s President and Qualifying Party. The license was placed on disciplinary suspension in February 2009 and remains in that status. 2. Complainant made a claim to the Fund in June 2009 for the cost of corrective work needed due to Respondent’s failure to correct water damage inside Complainant’s house from a roof leak that resulted from Respondent’s poor workmanship. Complainant obtained three bids estimating the cost of the necessary repairs. 3. ROC Inspector Daryl McCloskey filed a report in July 2010, in which he listed the bids and noted that one part of the claim (dealing with damage to a dryer) could not be shown to be Respondent’s responsibility. Inspector McCloskey testified at the hearing in support of his report. 4. Inspector McCloskey recommends payout in the amount of $5,845.01, based on the lowest bid. Complainant does not object. 5. Respondent appeared at the hearing and briefly testified but did not present evidence showing that the recommended payout amount was unreasonable. As that was the only issue for hearing, Respondent’s brief testimony was not relevant to the issue to be determined. 6. The record supports the recommended payout of $5,845.01.

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) and is, therefore, entitled to recovery from the Fund. 3. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award, based on actual damages, an appropriate payment to Complainant from the Fund pursuant to A.R.S. §§ 32-1132 and 32-1154(F). 4. The evidence of record supports an award to Complainant in the amount of $5,845.01, all of which shall be chargeable against Respondent and 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 $5,845.01.

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, December 20, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit C4 is photographs and Exhibit C5 is a DVD containing a video recording made by Complainant. [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).

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