ALJDEC decisions subject to certification as final

2009A-7100063-ROC · Registrar of Contractors · 2011-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2011 at 8:00 a.m. APPEARANCES: Complainants Bryant and Linda Buschman did not appear; Respondent Stafford Homes Corp. appeared through Steve and Darci Crane; the Arizona Registrar of Contractors appeared through Montgomery Lee, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In May 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC207152, Class B for residential general contracting to Stafford Homes Corp. (“Respondent”). On or about March 30, 2007, Bryant and Linda Buschman (“Complainants”) entered into a contractual agreement with Respondent to build their new residence. On or about May 19, 2008, Complainants filed a complaint to the Registrar against Respondent regarding its construction of the residence. The Registrar designated Complainants’ workmanship complaint as Case No. A08- 0486 and assigned it to Inspector Cliff Frandsen for investigation. Inspector Frandsen performed a jobsite inspection of Complainants’ residence and issued a Corrective Work Order to Respondent in Case No. A08- 0486. Subsequently, the Registrar issued a Citation and Complaint against Respondent in Case No. A08-0486. Respondent did not file a timely written answer to the Registrar’s Citation and Complaint in Case No. A08-0486, and on June 12, 2009, the Registrar issued a default Decision and Order. On or about July 31, 2009, Complainants filed a claim to the Registrar’s Residential Contractors’ Recovery Fund (“the Fund”). The address that Complainants provided on the claim form was P.O. Box 182, Yarnell, AZ 85362- 0182. The Registrar designated Complainants’ claim to the Fund as Case No. RF10-0063. On October 19, 2009, the Registrar suspended Respondent’s license as a result of its failure to comply with the Decision and Order in Case No. A08- 0486. The Registrar subsequently redesignated Complainants’ claim to the Fund in Case No. RF10-0063 as Case No. 2009-7100063. On September 24, 2010, Marc A. D’Amore, the Registrar’s Recovery Fund Administrator, sent a letter to Complainants in Case No. 2009-7100063, informing them that based on the Registrar’s review of the file, it appeared that the amounts that they had paid to other contractors to complete or repair their residence were less that the amount that they owed to Respondent under the parties’ contract. Therefore, Complainants were ineligible to recover any monies from the Fund under A.R.S. § 32-1132 because they had not sustained any actual damages as a result of Respondent’s contracting law violations in case No. A08-0486. Complainants requested a hearing on the Registrar’s denial of their eligibility to recover any damages from the Fund in Case No. 2009-7100063. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. On November 24, 2010, the Registrar issued a Notice of Hearing in Case No. 2009-7100063 on Complainants’ claim to the Fund, setting a hearing on February 14, 2011, at 8:00 a.m. at the Office of Administrative Hearings. The Registrar mailed a copy of the Notice of Hearing to Complainants at the address they had provided on the claim form. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Complainants additional travel time, they did not appear personally or through an attorney, did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, and did not present any evidence to establish their damages or eligibility to recover monies from the Fund. The Registrar’s attorney informed the Administrative Law Judge that several days before the hearing, Complainants had informed the Registrar’s staff that they did not intend to pursue their claim to the Fund in Case No. 2009-7100063. CONCLUSIONS OF LAW 1. The Notice of the Hearing that the Registrar mailed to Complainants at the address that they provided on their claim to the Fund was reasonable and Complainants are deemed to have received the Notice of Hearing.[1] 2. Complainants bear the burden of proof and must establish their eligibility to recover a payout from the Fund by a preponderance of the evidence.[2] 3. By failing to appear at the duly noticed hearing or to present any evidence in support of their claim, Complainants have failed to establish that their claim is eligible for a payout from the Fund. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Complainants Bryant and Linda Buschman’s claim to the Residential Contractors’ Recovery Fund in Case No. 2009-7100063. 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, February 14, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 32-1132(A); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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