ALJDEC decisions subject to certification as final

2016A-RFA-3375-ROC-RF · Registrar of Contractors · 2017-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Brian Scott

COMPLAINANT

-v-

Home Lift Now LLC

License No(s). CR61.302446-D

RESPONDENT

No. 2016A-RFA-3375-ROC-RF

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 19, 2017

APPEARANCES: Complainant appeared on behalf of himself. Respondent did not appear. Thomas C. Raine, Esq. appeared on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On November 26, 2016, the Registrar of Contractors, (hereinafter “Registrar”), issued a “Notice of Recovery Fund Eligibility/Payout Hearing” setting the above-captioned matter for hearing on January 19, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice shows that the hearing was set to determine whether an award and payment from the Contractors’ Recovery Fund pursuant to Ariz. Rev. Stat. section 32-1154(F) is justified by the evidence.

Complainant David Brian Scott appeared and testified. The Registrar presented the testimony of Doug Ulmer, a Recovery Fund claims reviewer.

On or about December 10, 2015, Complainant and his wife Renee Scott entered into a contract with Respondent for the remodeling of their home located at 17435 W. Maryland Avenue in Wadell, Arizona.

At the time that the contract was entered into by Complainat and Respondent, the Registrar had not issued a license to Respondent.

The Registrar did not issue a license to Respondent until December 26, 2015.

On September 1, 2016, Complainant filed a complaint with the Registrar alleging that Respondent abandoned the contract.

The Registrar investigated the complaint.

On September 8, 2016, the Registrar issued a Citation against Respondent.

Respondent failed to timely respond to the Citation pursuant to A.R.S. §32-1155(A).

On October 4, 2016, the Registrar issued a Final Administrative Order and revoked Respondent’s license based upon Complainant’s September 1, 2016 complaint.

On October 17, 2016, Complainant filed a claim with the Registrar’s Residential Recovery Fund (hereinafter “Recovery Fund”).

The claim was reviewed by Recovery Fund Claims Reviewer, Doug Ulmer. Mr. Ulmer reviewed the case file documents and discovered that the Registrar had not issued a license to Respondent at the time that the contract was executed.

In a “Notice and Order of Denial of Recovery Fund Claim” dated November 7, 2016, the Registrar informed Complainant that his request for payment from the Fund had been denied.

The Registrar denied the claim because it found that Complainant was not eligible to access the Fund because the Registrar had not issued a license to Respondent at the time that the contract was entered into by Complainant and Respondent.

At the hearing, the Complainant testified that he did not know that the Respondent was unlicensed at the time that he entered into the contract.

The Registrar does not dispute that Complainant was injured by the

actions of Respondent. However, the Registrar takes the position that Complainant was not eligible for a payment from the Recovery Fund because it had not issued a

license to Complainant at the time that the contract was executed.

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 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).

In McMurren v. JMC Builders, Inc., the Court concluded that to qualify as a person injured, a claimant was required to meet the ownership and occupancy requirements at the time the contract was executed. 204 Ariz. 345; 63 P.3d 1082 (App. 2003).

Respondent had not been issued a license at the time that the contract was executed in this matter.

Consequently, the Registrar appropriately denied Complainant’s Recovery Fund claim.

ORDER

IT IS ORDERED that David Brian Scott’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, February 8, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors