ALJDEC decisions subject to certification as final

2016A-4444-RFA-ROC · Registrar of Contractors · 2018-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Thomas Mayer,

COMPLAINANT,

v.

Pool Renovation Pros LLC,

License No:

277248

RESPONDENT.

No. 2016A-4444-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2018

APPEARANCES: James Thomas Mayer appeared on behalf of himself. Assistant Attorney General John Tellier appeared on behalf of the Registrar of Contractors. No one appeared on behalf of Pool Renovation Pros, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On January 4, 2018, the Registrar of Contractors, (hereinafter “Registrar”), issued an “Amended Notice of Recovery Fund Eligibility/Payout Hearing” setting the above-captioned matter for hearing on February 16, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.

The notice shows that the hearing was set to determine “the sole issue of Complainant’s eligibility to access the Recovery Fund.”

James Thomas Mayer (“Mr. Mayer”) appeared and testified. The Registrar presented the testimony of Marlee McCormick, a legal assistant for the Registrar.

On or about September 8, 2015, Mr. Mayer and his wife, Sharon Mayer (“Mrs. Mayer”) and Pool Renovation Pros, LLC (“Pool Renovation”) entered into a construction contract wherein Pool Renovation would remodel their home located at 4742 N. Launfal Avenue in Phoenix, Arizona (“property”). See Exhibit 1.

At all times relevant to this matter, J.I.M., LLC (“J.I.M.”) owned the property. See Exhibits 6 and 7.

The property is not owned by Mr. Mayer or Mrs. Mayer. See id.

On November 7, 2016, the Registrar received a complaint from Mr. Mayer alleging poor workmanship on the part of Pool Renovation. See Exhibit 1.

The Registrar investigated the complaint.

On November 8, 2016, the Registrar issued a Citation against Respondent. See Exhibit 3.

Respondent failed to timely respond to the Citation pursuant to Ariz. Rev. Stat. section 32-1155(A). See Exhibit 4.

On December 22, 2016, the Registrar issued a Final Administrative Order and revoked Respondent’s license based upon Mr. Mayer’s complaint. See id.

On or about November 6, 2017, Mr. Mayer filed a claim with the Registrar’s Residential Recovery Fund (hereinafter “Recovery Fund”). See Exhibit 5.

The claim was reviewed by Marlee McCormick (“Ms. McCormick”). Ms. McCormick reviewed the case file documents and discovered that Mr. Mayer and Mrs. Mayer did not own the property. Ms. McCormick discovered that J.I.M., LLC owned the property since or about January 21, 2005.

Mr. Mayer and his wife are members and manages of J.I.M. which was incorporated on November 5, 2004. See Exhibit 8.

On or about December 5, 2017, the Registrar issued a “Notice and Order of Denial of Recovery Fund Claim” to Mr. Mayer. See Exhibit 9.

The claim was denied because the Registrar found that Complainant was not eligible to access the Fund because Mr. Mayer and Mrs. Mayer do not own the property, and did not own the property at the time of the contract pursuant to Ariz. Rev. Stat. section 32-1131. See id.

At hearing, Mr. Mayer testified that he and his wife are the only people who have an interest in the property. Mr. Mayer contended that he and his wife have complete control over the property and that “no one else can do anything” with the property.

The Registrar contended that J.I.M., the owner of the property, is not a party to the proceeding. The Registrar contended that Mr. Mayer is not eligible for a payout from the Recovery Fund because he nor his wife have an ownership interest in the property, which is an asset of J.I.M.

CONCLUSIONS OF LAW

Complainant bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is “[e]vidence 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 (6th ed. 1990).

To be eligible for a payout from the Fund, Complainant must show that he is a person injured pursuant to contracted with a residential contractor whose license was in good standing at the time of contract execution under Ariz. Rev. Stat. section 32-1132(A).

Ariz. Rev. Stat. section 32-1131(3)(a) provides:

Definitions

In this article, unless the context otherwise requires:

* * *

3. "Person injured":

(a) 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.

It is undisputed that Mr. Mayer nor his wife own the property. At the time of contract execution and the completion of the work, J.I.M. owned the property.

Therefore Mr. Mayer nor Mrs. Mayer is an injured person under Ariz. Rev. Stat. section 32-1131(3)(a).

Consequently, this Tribunal concludes that the Registrar appropriately denied Mr. Mayer’s Recovery Fund claim.

ORDER

IT IS ORDERED that James Thomas Mayer’s appeal is dismissed.

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 is forty days after the date of that certification.

Done this day, March 8, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors