ALJDEC decisions subject to certification as final

2013A-5879-ROC · Registrar of Contractors · 2015-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2015 APPEARANCES: Brian and Margaret Sullivan, Complainants; Seth Hargraves, Attorney for the Registrar of Contractors; James L. Barbar, witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

After appealing the denial of a claim for reimbursement from the Residential Contractors Recovery Fund, Complainants failed to establish that they were legally eligible for reimbursement. Therefore, it must be recommended that this appeal be denied. FINDINGS OF FACT 1. On November 21, 2014, the Registrar of Contractors received a Recovery Fund Claim Form from Complainants. The claim was denied on the grounds that Complainants’ home was not a Class 3 residence. Complainants appealed. 2. A hearing was set with the Arizona Office of Administrative Hearings to consider the merits of Complainants’ appeal. 3. At the hearing, Complainants did not dispute that their home was not listed as a Class 3 residence at the time they entered their contract with the Respondent; however, they argued that they were not aware what classification the home had. They argued that they pay the same taxes as anyone else, and the requirement that a home be registered as a Class 3 was discriminatory in nature. 4. Complainants also argued that they were told that the Registrar of Contractors would represent them if they filed a claim, but when they filed the Recovery Fund Claim Form, the Registrar of Contractors stopped representing them. 5. Complainants argued that the residence is the primary residence when they are in the United States and when they are in Canada, their home there is their primary residence. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. § 41-1092.08. 2. A.R.S. § 32-1132 provides that any “person injured” by a residential contractor’s violation of the attendant chapter may be reimbursed by the Residential Contractor’s Recovery Fund. 3. A.R.S. § 32-1131 defines “person injured” as any owner of a residence classified as a Class 3 property under A.R.S. § 42-12003. 4. Pursuant to A.R.S. § 42-12003(A), a residence is classified as a Class for tax purposes when it is the owner’s primary residence. 5. In this case, it was undisputed that Complainants’ Arizona property was not registered as a Class 3. A.R.S. § 32-1131, when read in conjunction with A.R.S. § 32-1132, prohibits the Registrar of Contractors from issuing a pay-out from the Residential Contractor’s Recovery Fund when the property at issue is not registered as a Class residence. 6. Although Complainants argued that the requirement that the applicant’s home be registered as a Class 3 was discriminatory, they offered no legal support for the argument that owners of homes with different tax classifications are a protected class for the purpose of any anti- discrimination laws or theories. 7. Although Complainants argued that both of their homes are their primary residence, they did not establish that they registered their property as such. Further, though they denied knowing how they had registered their own property, they claimed that they enjoyed no tax benefits for this home, yet a reading of A.R.S. §§ 42-12003 and 42- 12004 clearly implies that there is a tax advantage for registering one’s home as a Class 3, but which is only allowed when it is the primary residence. 8. Complainants offered no legal authority in support of any of their legal and equitable arguments. 9. Complainants have the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G); A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, § (1960). 10. Based on the above-noted considerations, it is clear that Complainants did not meet their burden of establishing by a preponderance of the evidence that they qualify for a payout from the Residential Contractors Recovery Fund because they did not meet the statutory definition of “person injured”. Consequently, the denial of their claim was appropriate and this appeal should be denied. RECOMMENDED DECISION Based on the foregoing considerations, it is recommended that the Registrar of Contractors deny this appeal.

Done this day, March 16, 2015.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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