ALJDEC decisions subject to certification as final

2009A-7100044-ROC · Registrar of Contractors · 2011-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2011, and April 14, 2011 at 1:00 p.m. APPEARANCES: The Complainants appeared through Michelle Minkus. The Respondent appeared through its authorized representative, Ceasar Ramos. The Registrar of Contractors appeared through Assistant Attorney General, Montgomery Lee and Assistant Attorney General, Camila Alarcon. . ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. On September 24, 2010, the Recovery Fund Administrator with the Registrar of Contractors issued a Notice of Recovery Fund Ineligibility advising the Complainants that they had been found ineligible for payment from the Contractors’ Recovery Fund. The Notice provides, in pertinent part, as follows: Despite multiple requests since August of 2009 for additional documentation to support your claim, you have still not demonstrated that you have suffered a loss. In fact, we are showing that you have a net gain of $78,284.74. 2. The Complainants disagreed with the determination of ineligibility and requested an administrative hearing. 3. On January 11, 2011, the Registrar of Contractors issued a Notice of Recovery Fund Eligibility/Payout Hearing. 4. The Notice provides, in pertinent part, as follows: If this hearing arises from a Notice of Ineligibility, the sole issue to be adjudicated will be the threshold issue of whether Complainant is eligible to access the Fund under A.R.S. § 32-1131 et seq. and no evidence pertaining to the propriety and amount of any potential payout form the Fund will be heard. 5. During the first day of hearing on March 11, 2011, the Complainants produced additional documentation regarding their alleged damages in this matter. 6. The hearing was then adjourned and set for further hearing so as to allow the Registrar of Contractors and the Respondent sufficient time to review the new documentation presented on March 11, 2011. 7. At the onset and close of the second day of hearing on April 14, 2011, the Registrar of Contractors moved to withdraw its objection based on eligibility for a payout from the Contractors’ Recovery Fund to the Complainants based upon a review of the new documentation of damages produced by the Complainants during the first day of hearing on March 11, 2011. 8. The Respondent continued to oppose a determination that the Complainants were eligible to receive payment from the Contractors’ Recovery Fund. 9. Credible testimony and evidence, produced during the first day of hearing held on March 11, 2011, established that the Complainants have suffered an undetermined financial loss in this matter as a result of the Respondent’s acts or omissions and that the Complainants are eligible to access the Contractors’ Recovery Fund under the provisions of A.R.S. § 32-1131 et seq.

CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence their eligibility pursuant to A.R.S. § 32-1131 et seq. 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. Credible testimony and evidence, produced at hearing on March 11, 2011, supported findings which establish that the Complainants are an “injured person” as defined by statute and are eligible to receive payment from the Contractors’ Recovery Fund for damages sustained as a result of the Respondent’s acts or omissions. RECOMMENDed order In view of the foregoing, it is recommended that the Notice of Ineligibility be withdrawn and quashed and that the Complainants be allowed to proceed with their claim for damages from the Contractors’ Recovery Fund. . 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, April 14, 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