ALJDEC decisions subject to certification as final

2009A-7100497-ROC · Registrar of Contractors · 2011-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 25, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Thomas L. Proktter. The Registrar of Contractors appeared through Assistant Attorney General, Montgomery Lee. 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. The Notice of Recovery Fund Eligibility/Payout Hearing issued in this matter 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 from the Fund will be heard. 1. On November 18, 2010, the Registrar of Contractors issued a Notice to Claimant of Recovery Fund Ineligibility which informed the Complainant that his Recovery Fund Administrative Claim had been determined to be ineligible for payment from the Contractors’ Recovery Fund based upon a determination that the Complainant failed to meet eligibility requirements. 2. The Complainant disagreed with the determination of ineligibility and on December 3, 2010, filed a request for an administrative hearing. 3. There was no dispute that the building structure at issue had previously been a day care center and that the building structure had been empty for several years before the Complainant entered into a construction agreement with the Respondent. 4. Credible testimony and evidence established that the construction agreement between the Complainant and the Respondent was a commercial construction agreement for the performance of construction work on a commercial building. 5. Credible testimony and evidence presented at hearing established that at the time the parties entered into the underlying construction agreement, the Complainant intended that the building structure function solely as a commercial property. 6. Credible testimony and evidence established that the building structure at issue was originally classified as a class two property and that the local municipality has reclassified the property as a type one property. 7. There was no credible evidence that the structure at issue has been reclassified as a type three residential property. 8. The Complainant asserted that he is now in the process of turning the commercial building structure into a class three residential structure. 9. There was no dispute that the real property at issue was not a residential property the time the contract was entered into. 10. There was no credible evidence that the Complainant had ever been an occupant of the building structure at issue. 11. Credible testimony and evidence established that the Complainant had never intended to occupy the building structure at issue as a residence until the local municipality had recommended that turning the structure into a residence could help ease a tax problem the Complainant was experiencing with the local municipality. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Complainant meets the definition of a “person injured” as defined in A.R.S. § 32-1132.3. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Complainant is eligible for to access the Contractors’ Recovery Fund. 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. A.R.S. § 32-1131.3, provides, in pertinent part, as follows: “Person injured” means any owner of residential real property which is classified as class three property under section 42- 12003 and which is actually occupied or intended to be occupied by the owner as a residence… 5. The Complainant failed to sustain his burden of proof to establish that the Complainant is eligible to access the Contractors’ Recovery Fund RECOMMENDed order In view of the foregoing, it is recommended that determination of Recovery Fund Ineligibility be affirmed and that this matter be dismissed.

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, March 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