ALJDEC decisions subject to certification as final

2010A-119382-ROC · Registrar of Contractors · 2011-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2011

APPEARANCES: Complainants appeared on their own behalf; Respondent did not appear; the Residential Contractors’ Recovery Fund intervened in this matter and was represented by Assistant Attorney General Elizabeth Campbell.

WITNESSES: Rosa Tanzi Frank Tanzi Doug Ulmer, ROC Recovery Fund Claims Reviewer

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants seek payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by Respondent Giaconi Di Roma LLC. Respondent did not appear. The Fund appeared through Assistant Attorney General Elizabeth Campbell and challenged Complainants’ eligibility for payout from the Fund. The only issue for which the parties were given notice and for which the hearing was held is Complainants’ eligibility. That is the only issue addressed herein. This tribunal entered the claim file received from the Registrar of Contractors into the record, several portions of which were marked and presented as Exhibits 1, 2, and 3. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Complainants to be ineligible for recovery from the Fund. FINDINGS OF FACT 1. Respondent was the holder of license K-48.244207-D issued by the Registrar of Contractors (“ROC”). From May 1, 2009, to July 29, 2009, Respondent’s license was suspended by law for lack of bond. The license was revoked in January 2011. Respondent’s Qualifying Party is Gianni Giaconi. 2. Respondent did poor work on a tile installation job at Complainants’ house. Respondent’s license was revoked after Complainants filed a complaint with the ROC. Complainants then made a claim to the Fund for recovery of damages, noting that the contract they entered into with Respondent was dated June 29, 2009, that the work was completed on July 16, 2009.[1] The ROC conducted a preliminary check of the claim and determined that Complainants had entered into the contract with Respondent while Respondent’s license was suspended. The ROC determined that Complainants were, therefore, not eligible for recovery from the Fund. Complainants requested a hearing. 3. At hearing, Complainants did not dispute that Respondent’s license was suspended at the time of the contract and during the project. They also did not dispute that the governing statute does not provide for recovery to those who contract with a contractor whose license is suspended. They expressed displeasure with the Respondent, the ROC, and the statute, and dismay that Respondent was “getting away with” harming them after they won their case on the underlying complaint. 4. There being no factual or legal dispute, the hearing ended. 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, Complainants bear the burden of showing, by a preponderance of the evidence, that they are eligible for recovery from the Fund.[4] Complainants have not met that burden. 2. Arizona Revised Statutes (A.R.S.) § 32-1132(A) provides, in part, that “[a]n award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of a residential contractor who was not licensed pursuant to this chapter or whose license was in an inactive status, expired, cancelled, revoked, suspended or not issued at the time of the contract.”[5] Thus, persons injured by a contractor with a suspended license are not eligible for recovery from the Fund. 3. Because Respondent’s license was suspended at the time of the contract, Complainants are not eligible for recovery from the Fund. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the determination of the Registrar of Contractors that Frank and Rosa Tanzi are not eligible for recovery from the Fund be upheld.

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 15, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [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] Sixth sentence.

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