ALJDEC decisions subject to certification as final

2010A-550050-ROC-rhg · Registrar of Contractors · 2011-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 2011 APPEARANCES: Complainants Christopher and Elena Starbuck did not appear. David Harvey appeared on behalf of Respondent Creative Flooring Designs, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ FINDINGS OF FACT On July 15, 1996, the Arizona Registrar of Contractors (“the Registrar”) issued License No. 115661, Class C-8 for residential floor covering to Creative Flooring Designs, Inc. (“Respondent”). On or about April 29, 2011, the Registrar received a claim to the Residential Contractors’ Recovery Fund (“the Fund”) from Christopher and Elena Starbuck (“Complainants”) in the amount of $19,782.81 to repair Respondent’s work at Complainants’ residence at 30 Schimberg Road, Sedona, Arizona 86336. Complainants provided their mailing address as the same as the jobsite address. On or about July 1, 2011, the Registrar issued a Notice of Claim for Administrative Payout, informing the parties as follows: After a review of the claim and all supporting documentation, the Fund has determined that Complainants are to be awarded $19,782.81 in the form of a payment issued by the Fund. [Emphasis in original.]

Respondent thereafter filed a request for hearing because it disagreed with the proposed payout amount. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On August 29, 2011, the Registrar issued a Notice of Recovery Fund Eligibility/ Payout Hearing, setting a hearing on October 5, 2011, at 8:00 a.m. The Registrar sent a copy of the Notice of Recovery Fund Eligibility/Payout Hearing to Complainants at their mailing address that they provided on their claim to the Fund. On the date and at the time scheduled for hearing, Respondent’s qualifying party and officer, David Harvey, appeared on Respondent’s behalf. Complainants did not appear. Complainants did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed approximately thirty minutes to allow Complainants additional travel time, Complainants did not appear, personally or through an attorney, and did not contact the Office of Administrative Hearings to indicate any cause for their absence or delay. Consequently, Complainants did not present any evidence to establish the amount of the payout that they may be entitled to recover from the Fund. Mr. Harvey made a motion to dismiss Complainants’ claim to the Fund.

CONCLUSIONS OF LAW 1. The Notice of Recovery Fund Eligibility/Payout Hearing that the Registrar mailed to Complainants at the address that they provided on their claim to the Fund was reasonable and Complainants are deemed to have received the Notice of Recovery Fund Eligibility/Payout Hearing.[1] 2. Complainants bear the burden of proof and must establish the amount of the payout that they are entitled to recover from the Fund by a preponderance of the evidence.[2] 3. By failing to appear at the duly noticed hearing or to present any evidence in support of their claim, Complainants have failed to establish that they are entitled to recover a payout in any amount from the Fund. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainants Christopher and Elena Starbucks’ claim in Case No. 2010- 550050, as Complainants have not established that they are entitled to any payout from the Residential Contractors’ Recovery 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 Order will be 40 days from the date of that certification. Done this day, October 24, 2011.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 32-1132(A); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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