ALJDEC decisions subject to certification as final

2010A-308476264-ROC · Registrar of Contractors · 2011-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 8, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent did not appear; the Residential Contractors’ Recovery Fund intervened in this matter and was represented by Assistant Attorney General Montgomery Lee.

WITNESSES: none

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by Respondent D Eckert Construction. Respondent did not appear. The Fund appeared through Assistant Attorney General Montgomery Lee and challenged Complainant’s eligibility for payout from the Fund. The only issue for which the parties were given notice and for which the hearing was held is Complainant’s eligibility. That is the only issue addressed herein. This tribunal entered the claim file received from the Registrar of Contractors into the record. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Complainant to be ineligible for recovery from the Fund. FINDINGS OF FACT 1. Respondent was the holder of license C-62.186732-R issued by the Registrar of Contractors (“ROC”). In August 2009, Respondent’s license was suspended for non-renewal. Complainant entered into a contract with Respondent in April 2010, while the license was still suspended. In August 2010, the license expired. 2. Respondent did poor work and failed to complete the job. Respondent defaulted after Complainant filed a complaint with the ROC. Complainant then made a claim to the Fund for recovery of damages. The ROC conducted a preliminary check of the claim and determined that Complainant had entered into the contract with Respondent while Respondent’s license was suspended. The ROC determined that Complainant was, therefore, not eligible for recovery from the Fund. Complainant requested a hearing. 3. At hearing, Complainant stated that he did not dispute that Respondent’s license was suspended at the time of the contract and during the project. He also did not dispute that the governing statute does not provide for recovery to those who contract with a contractor whose license is suspended. Instead, he argued that he should have been told by the ROC that he was not eligible for recovery from the Fund before he made the underlying complaint or afterward. He expressed his displeasure with the ROC. 4. Complainant did not provide any legal authority showing that the ROC was required to make a determination as to his eligibility for recovery from the Fund before he actually applied to the Fund. 5. There being no factual or legal dispute, the hearing ended without taking testimony. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that he is eligible for recovery from the Fund.[3] Complainant has 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.”[4] 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, Complainant is not eligible for recovery from the Fund. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors maintain the conclusion that Donn Higley is not eligible for recovery from the Fund.

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, September 27, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [4] Sixth sentence.

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