ALJDEC decisions subject to certification as final

2010A-422309-ROC-rf · Registrar of Contractors · 2012-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 25, 2012, at 8:00 a.m. APPEARANCES: Elizabeth Sweigart (hereinafter “Complainant”) appeared on her own behalf. Roland Murphy Stahnke dba Artform Construction (hereinafter “Artform”) failed to appear. 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 Claim for Administrative Payout provides, in pertinent part, as follows: The Complainant named above filed a claim for payment with the Residential Contractors’ Recovery Fund [hereinafter “the Fund”] pursuant to A.R.S. § 32-1154(F). After a review of the claim and all supporting documentation, the Fund has determined that Complainant is to be awarded $6,425.00 in the form of a payment issued by the Fund. This amount was calculated based upon the low bid from a licensed contractor to repair deficient work performed by Respondent, as set forth in the underlying disciplinary case.

2. Artform disagreed with the determination of the Fund and requested an administrative hearing. 3. Complainant testified that the lowest bid from a licensed contractor for the proper correction of Artform’s deficient construction work on Complainant’s residence, as substantiated in the underlying disciplinary matter, was from Wayne M. Kocisko Construction Company, License No. B.050533-R, in the sum of $6,425.00.[1] 4. Complainant’s undisputed testimony is found to be credible. 5. Administrative notice is taken of Artform’s prior license record as reflected on the Registrar of Contractors’ public website on September 25, 2012. Such prior license record reflects that License No. B.092927-R of Artform was revoked by the Registrar of Contractors on March 7, 2012. 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] The Notice of Claim for Administrative Payout states that Complainant bears the burden of proof to show entitlement to the amount in the Notice. Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that the proposed payout amount is reasonable and proper. Complainant has met her burden. 2. Complainant is an injured person within the definition in A.R.S. § 32- 1131(3) and is, therefore, entitled to recovery from the Fund. 3. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award, based on Complainant’s actual damages, an appropriate payment to Complainant from the Fund pursuant to A.R.S. § 32-1132 and A.R.S. § 32-1154(F). 4. The evidence of record supports an award to Complainant in the amount of $6,425.00, all of which shall be chargeable against Artform and persons on the license as set forth in A.R.S. § 32-1139(B).[4] RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors make payment from the Residential Contractors’ Recovery Fund, when sufficient funds are available, to Complainant in the amount of $6,425.00.

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 25, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Administrative notice is taken of Wayne M. Kocisko Construction’s prior license record as reflected on the Registrar of Contractors’ public website on September 25, 2012. Such prior license record reflects that License No. B.050533-R of Wayne M. Kocisko Construction is current. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949); A.A.C. 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] A.R.S. § 32-1139(B) provides, in pertinent part, as follows: If any amount is paid from the fund in settlement of a claim arising from the act, representation, transaction or conduct of a residential contractor, the license of the contractor shall be automatically suspended by operation of law until the amount paid from the fund is repaid in full, plus interest at the rate of ten per cent a year. Any person who is or was, at the time of the act or omission, named on a license that has been suspended because of a payment from the recovery fund is not eligible to receive a new license or retain another existing license that also shall be suspended by operation of law, nor shall any suspended license be reactivated, until the amount paid from the fund is repaid as provided in this subsection.

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