ALJDEC decisions subject to certification as final

2010A-7100592-ROC · Registrar of Contractors · 2011-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 26, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. The Registrar of Contractors appeared through Assistant Attorney General, Camila Alarcon. 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 December 14, 2010, the Registrar of Contractors issued a Notice of Recovery Fund Eligibility/Payout Hearing. 2. The said notice provides, in pertinent part, as follows: 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: Claimant stated on purchase agreement that they did not intend to occupy the property, and therefore does not qualify as a “person injured” pursuant to § 32- 1131.3….At the administrative hearing, you will bear the burden of proof to establish eligibility pursuant to A.R.S. § 32-1131. 3. The Complainant disagreed with the determination that he was not eligible pursuant to A.R.S. § 32-1131 and requested an administrative hearing. 4. Credible testimony and evidence established that the Complainant along with a co-purchaser stated on their purchase agreement for the residence at issue that they would not intend to occupy the property. 5. Credible testimony and evidence established that the residence at issue has been repeatedly listed as a “for sale” property and is currently rented out to offset the mortgage payments. 6. Credible testimony and evidence of record established that the Complainant purchased the residence at issue as an investment property to resell and make a profit. 7. The credible testimony and evidence of record is insufficient and fails to support a finding that the Complainant has ever occupied the residence. 8. The credible testimony and evidence of record is insufficient and fails to support a finding that the Complainant has ever intended to occupy the residence at issue. 9. The credible testimony and evidence or record is insufficient and fails to support a finding that the Complainant qualifies as a “person injured” pursuant to the provisions of A.R.S. § 32-1131.3. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that he is eligible to access the Contractors’ Recovery Fund under A.R.S. § 32-1131 et seq. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 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. § 32-1131.3 provides as follows: "Person injured" means any owner of residential real property which is classified as class three property under section 42- 12003 and which is actually occupied or intended to be occupied by the owner as a residence including community property, tenants in common or joint tenants who are damaged by the failure of a residential contractor or a dual licensed contractor to adequately build or improve a residential structure or appurtenance on that real property. Included in this definition are lessees of residential real property who contract directly with a residential contractor or indirectly with a subcontractor of that contractor and homeowners' or unit owners' associations after transfer of control from the builder or developer for damages to the common elements within the complex. 5. The credible testimony and evidence of record was inadequate and failed to support a finding that the Complainant is an “injured person” pursuant to A.R.S. § 32-1131.3. 6. The Complainant failed to sustain his burden of proof to establish eligibility for payment from the Contractors’ Recovery Fund pursuant to A.R.S. § 32-1131. RECOMMENDed order In view of the foregoing, it is recommended that the Contractors’ Recovery Fund’s determination that the Complainant is ineligible for payment from the fund be upheld. 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, June 7, 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