ALJDEC decisions subject to certification as final

2010A-308471924-ROC · Registrar of Contractors · 2011-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear. 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. On April 22, 2011, the Registrar of Contractors issued a Notice to Claimant of Recovery Fund Ineligibility which provides, in pertinent part, as follows: The Claimant(s) named above filed a claim for payment with the Residential Contractors’ Recovery Fund pursuant to A.R.S. § 32- 1154(F). After a review of the claim and all supporting documentation, the Fund has determined, based upon A.R.S. § 32- 1131, that the Claimant(s) is ineligible for a payment from the Fund for one or more of the following reasons: Respondent’s License was in an Inactive Status, Expired, Cancelled, Revoked, Suspended or Not Issued at the Time of the Contract as Prohibited by A.R.S. § 32-1132. Bowers Painting’s license was suspended for non-renewal on June 1, 2009. The suspension was never lifted or set aside. Claimants executed their contract with Bowers on November 16, 2009. As such, Claimants are ineligible to access the Fund pursuant to § 32- 1132(A). 2. On April 26, 2011, the Complainant filed a request for an administrative hearing. 3. There was no dispute that on November 16, 2009, the Complainant entered into a contractual agreement with the Respondent for painting work at the Complainant’s residence. 4. Credible testimony and evidence established that the Respondent’s License was administratively suspended for non-renewal on June 1, 2009. 5. Credible testimony and evidence established that the license suspension was never lifted or set aside and that the Respondent’s License was suspended during the month of November, 2009, when the Respondent entered into the construction agreement with the Complainant and performed construction work on her residence. 6. There was no dispute that the Respondent’s License was revoked by the Registrar of Contractors on March 9, 2010. 7. The undisputed fact that the Respondent’s License was not revoked until March 9, 2010, does not alter the fact that the Respondent’s License was suspended for non-renewal on June 1, 2009 and that the said license suspension was never lifted or set aside. 8. Credible testimony and evidence established that the Complainant did ask other contractors if the Respondent was properly licensed but failed to contact the Registrar of Contractors and ensure that the Respondent’s License was current and in good standing when she entered into the construction agreement with the Respondent on November 16, 2009. 9. Credible testimony and evidence established that the Complainant is ineligible to access the Contractors’ Recovery Fund pursuant to the applicable provisions of A.R.S. § 32-1132 (A).

CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Complainant is eligible to access the Contractors’ Recovery Fund. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949), A.A.C, R2-19-119(A) and (B). 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. § 32-1132 (A) provides, in pertinent part, as follows: An 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. The Complainant failed to sustain her 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 the determination of Recovery Fund Ineligibility be affirmed and that this matter be closed as Complainant being deemed ineligible to receive a payout from the 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, August 2, 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