ALJDEC decisions subject to certification as final

2010A-729817-ROC-rf · Registrar of Contractors · 2012-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2012

APPEARANCES: Complainant appeared on her own behalf; Respondent appeared on his own behalf; the Residential Contractors’ Recovery Fund did not intervene in this matter and did not appear.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Maria Harrell seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by defective workmanship of Respondent Louis Visser. Respondent appeared but did not challenge the amount of the proposed payout, nor Complainant’s eligibility. Respondent wanted to challenge the underlying Final Order that found him responsible. This tribunal entered into the record both the underlying complaint file that resulted in a Final Order against Respondent and the claim file received by the Fund Complainant does not challenge the Fund’s recommendation for payout in the amount of $18,674.36. The claim file shows that the Registrar of Contractors deemed Respondent to have requested a hearing and the hearing was set. According to the Notice of Claim for Administrative Payout, the hearing was set to determine “the amount and/or propriety of the payment awarded.” At the hearing, neither Complainant nor Respondent had relevant testimony to present. Therefore, no testimony was taken and only the claim file and underlying complaint file constitute the record. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Decision for payout in the amount of $18,674.36. FINDINGS OF FACT 1. Respondent was the holder of license B.120856-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorized Respondent to operate as a general contractor for residential projects. As a sole proprietorship, Louis Visser was the Qualifying Party. 2. In September 2010, after an evidentiary hearing, Respondent was found to have violated licensing statutes. His license was revoked. That Decision and Order became final. 3. Complainant then made a claim to the Fund. The Fund reviewed the claim and recommended a payout of $18,674.36. Respondent filed a letter, received by the ROC on October 24, 2011, which challenged the finding that he was responsible for the violations. The ROC treated the letter as a request for hearing on the proposed payout. 4. At the hearing, Complainant stated that she agreed with the recommended amount of payout. 5. Respondent did not challenge or state any objection to the payout. 6. The record supports the recommended payout of $18,674.36. 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 the amount of recommended payout is reasonable.[3] Complainant has met that burden. 2. Complainant is injured person within the definition in A.R.S. § 32-1131(3). 3. Under the facts and circumstances of this case, the Registrar of Contractors is empowered to determine and award an appropriate payment to Complainant from the Fund pursuant to A.R.S. §§ 32-1132 and 32-1154(F). There is a cap of $30,000 for recovery from the Fund.[4] 4. Respondent caused the injuries to Complainant by poor workmanship. 5. The evidence of record supports an award to Complainant in the amount of $18,674.36, all of which shall be chargeable against Respondent and any other persons on the license as set forth in A.R.S. § 32-1139(B). RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors make payment from the Residential Contractors’ Recovery Fund to Complainant in the amount of $18,674.36.

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, January 30, 2012.

/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] A.R.S. § 32-1132(A).

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