ALJDEC decisions subject to certification as final

2014A-4028-RFA-ROC · Registrar of Contractors · 2017-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Phillip A McCreary

COMPLAINANT

-v-

Distinctive Roofing LLC

License No(s). 180910, 262051 & 275214

RESPONDENT

No. 2014A-4028-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2017

APPEARANCES: Phillip A. McCreary, Complainant; Daniel W. Grifford, III, Respondent’ Ron Roach, Respondent’s Attorney; Tom Raine, Attorney for the Registrar of Contractors; Marlee McCormick, Registrar of Contractors witness; Jessica Ortiz, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

After filing a Recovery Fund claim with the Registrar of Contractors, Complainant was unable to establish that he was eligible to make the claim. Therefore, it is recommended that this appeal be denied.

FINDINGS OF FACT

Complainant filed a Recovery Fund claim with the Registrar of Contractors.

On September 12, 2017, the Registrar of Contractors denied the claim on the grounds that Complainant is not eligible.

It was undisputed at the ensuing hearing on appeal that home regarding which the claim was made was not owned or occupied by Complainant at the time of the contract or when the work was being done.

Complainant argued that Respondent gave a 10 year warranty on its work. However, the Registrar of Contractors argued that its functional duties and official capacity are not based on enforcing individual warranties.

Respondent also argued that the failure of the roof in question was not due to Respondent’s work, rather it was due to a storm or microburst.

Complainant argued that, in addition to meeting all other eligibility requirements, the Recovery Fund is for injured parties and he was the owner of the home when the roof failed. He also argued that he had a transferrable warranty and that is what the Recovery Fund is for as well.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119.

A.R.S. § 32-1132 provides as follows:

The residential contractors' recovery fund is established, to be administered by the registrar, from which any person injured by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter may be awarded in the county where the violation occurred an amount of not more than thirty thousand dollars for damages sustained by the act, representation, transaction or conduct. An award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. Actual damages shall not be established by bids supplied by or the value of work performed by a person or entity that is not licensed pursuant to this chapter and that is required to be licensed pursuant to this chapter. . . .

[Emphasis added.]

A.R.S. § 32-1131(3)(a) defines “person injured” as follows:

"Person injured":

Means any owner of residential real property that is either noncommercial historic property as defined in section 42-12101 or classified as class three property under section 42-12003. The property must also be 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.

[Emphasis added.]

The Registrar of Contractors also relied on McMurren v. J.M.C. Builders, Inc., 63 P.3d 1082 (Ariz. Ct. App. 2003). That Arizona Court of Appeals Division 2 matter held that a homeowner must meet the requirement of living in the home or intending to at the time of the contract or the work.

It was undisputed that Complainant did not own or occupy the home at the time of the contract or at the time that the work was performed by Respondent.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Complainant’s appeal be denied. The Registrar of Contractors has properly denied his Recovery Fund claim.

Done this day, December 1, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors