ALJDEC decisions subject to certification as final

2011A-4833-ROC · Registrar of Contractors · 2012-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 31, 2012

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

WITNESSES: Eric Ulinger, Recovery Fund Supervisor Maria Beltran

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant seeks a payout from the Residential Contractors’ Recovery Fund (“Fund”) for damages caused by Respondent. The Fund appeared through Assistant Attorney General Seth Hargraves and challenged Complainant’s eligibility for payout from the Fund based on a finding that Complainant is not an injured person entitled to access the Fund because her property does not meet the tax classification requirement of the Fund statute. 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, along with the Fund’s Exhibits 1 through 4. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Complainant ineligible for recovery from the Fund. FINDINGS OF FACT 1. Respondent was the holder of License No: B.148753-R. Respondent and Complainant entered into an agreement in April 2011 for roofing work on Complainant’s home. Respondent took a down payment and abandoned the project. Respondent’s license was revoked in February 2012. 2. Complainant made a claim to the Fund in July 2012 for recovery of the down payment.[1] The Fund conducted a preliminary check and determined that Complainant’s property was not classified as class three (residential owner-occupied) property at the time of the contract from which the claim arose. Class three classification of the subject property is required by the statutes governing the Fund, so the Fund notified Complainant that she is ineligible for recovery.[2] Complainant then requested a hearing.[3] 3. At hearing, Recovery Fund Supervisor Eric Ulinger testified that the Fund’s position is based on Maricopa County Assessor’s records showing that the property at issue has been classified as class 4 property for the tax years 2011, 2012, and 2013.[4] This includes the date of contract and date of injury (abandonment), which both occurred in April 2011. 4. Complainant testified that she has always lived in the home since she bought it in December 2009. She was unaware of the tax classification until the denial of her Fund claim. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the person who brings the action.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that he is eligible for recovery from the Fund.[7] Complainant has not met that burden. 2. Only owners of “residential real property . . . classified as class three property under section 42-12003 . . .” are eligible for recovery from the Fund.[8] That provision is mandatory and not ambiguous. 3. Complainant did not provide evidence that the tax classification evidence submitted by the Fund was erroneous. 4. Complainant is not eligible for recovery from the Fund because she does not meet the statutory requirement that she be the owner of property that was classified as class three property at the time of the contract from which the damages arose. RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors find that the claim filed by Maria Beltran 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, November 19, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Exhibit 3. [3] Exhibit 4. [4] Exhibit 2. [5] 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). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [8] Arizona Revised Statutes (A.R.S.) § 32-1131(3).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826