FINACT2017A-502-RFA-ROC.pdf

2017A-502-RFA-ROC · Registrar of Contractors · 2018-07-27

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Diana L. Thomas, Case No. 2017-502 COMPLAINANT, Docket No. 2017A-502-RFA-ROC v.

Landcare Unlimited LLC, FINAL ADMINISTRATIVE DECISION AND License No. 235490, ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

MODIFICATION & JUSTIFICATION In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and modifies it. The administrative law judge found that A.R.S. § 32-1134(A)(2)(3) and (5) mandates all Recovery Fund claims be examined by an accountant and supported by conclusive proof of eligibility and all claimed damages. ALJ Dec. 2:2-8. The Registrar deletes that finding because it is inconsistent with the Registrar’s interpretation of A.R.S. § 32-1134(A)(2)(3) and (5). CONCLUSION

The Registrar modifies the Administrative Law Judge Decision by striking lines 2-8 on page 2 of

the Administrative Law Judge Decision.

The Registrar hereby accepts the remainder of the Administrative Law Judge Decision, which becomes effective on August 29, 2018.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 FINAL NOTE

On page 3, line 5 replace “July” with “June”.

Dated this 20th day of July 2018. Registrar of Contractors /s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund Copy mailed via USPS First Class mail this 20th day of July 2018 to: Respondent Landcare Unlimited LLC PO Box 611 Litchfield Park, AZ 85340-0611 Landcare Unlimited LLC 1300 S Litchfield Rd Goodyear, AZ 85340 Complainant Diana L. Thomas 1745 N 133rd Dr Goodyear, AZ 85395-2275 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Copy sent electronically this same date to: Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge

Office of the Attorney General John Tellier, Assistant Attorney General Case No. 2017-502/mm

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 7.13.2018 ROC LEGAL IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Diana L Thomas, No. 2017A-502-RFA-ROC

CLAIMANT, ADMINISTRATIVE LAW JUDGE DECISION v.

Landcare Unlimited LLC, License No 235490, RESPONDENT.

HEARING: July 3, 2018 APPEARANCES: Diana L. Thomas, Plaintiff, Marlee McCormick, Fund Reviewer, John Tiller, Esq., Attorney for the Fund and Tim Blake, Defendant. ADMINISTRATIVE LAW JUDGE Randolph D, Wolfson _____________________________________________________________________ FINDINGS OF FACT

1. On or about September 2, 2015, Diana Thomas (''Claimant”) entered into a residential construction contract with Landcare Unlimited LLC (''Respondent',) for the remodel of Claimant's backyard located at 1745 N 133rd Drive in Goodyear Arizona [the “Property”]. The work was completed on or about December 8, 2015. The Stephen A. Thomas Trust paid Respondent approximately $32,591.93 on December 9, 2015.1 2. On or about January 26, 2017, Claimant filed a Complaint with the Registrar of Contractors alleging poor workmanship. ROC Investigator Stephen Lawton investigated the Complaint. On May 8, 2017, the Registrar issued a Citation. 3. On May 23, 2017, Respondent filed a timely Answer to the Citation. On July 19, 2017, a hearing was held on the issues contained in the Complaint and Citation. On August 28, 2017, the Registrar issued a Final Administrative Decision and Order. 0n December 21, 2017, Respondent's license was suspended for 5 days as a direct result of Claimant's Complaint.

State’s Exhibit 5.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 7.13.2018 ROC LEGAL

4. On or about January 19, 2018, Claimant filed a Claim with the Arizona Residential Contractors Recovery Fund [the “Recovery Fund”]. 5. Pursuant to A.R.S. § 32-1134(A)(2)(3) and (5), the Registrar is required to subject the Recovery Fund claims to examination by an accountant to ensure that all claims are appropriate. In order to fulfill this fiduciary responsibility and to determine an amount payable (if any), the Registrar must request and obtain sufficient documentation to support all payments from the Recovery Fund. This includes having conclusive proof of eligibility and proof of the extent of all claimed damages. Anything less mandates the Registrar deny the unsubstantiated portion of any claimed loss. 6. To be eligible to access the Fund, an applicant must meet four eligibility criteria set forth at A.R.S. §32-1131, et seq. See also McMurren v. J.M.C. Builder, Inc., 204 Ariz. 345 (App. 2003). An applicant to the Recovery Fund must meet the definition of a “person injured” as set forth in A.R.S. § 32-1131(3) which requires, a. First that the applicant must own residential real Property; b. Second, the Property must have had a classification of three under A.R.S. §42-12003; c. Third, the owner of the Property must have occupied or intended to occupy the Property as a residence that is damaged by a residential or dual licensed contractor who has paid for financial protection from the Recovery Fund. These criteria must be met at either the time the contract was executed or at the time the injury accrued; and, d. Fourth, as set forth in A.R.S. §32-1132(A), an applicant must have contracted with a residential contractor whose license was in good standing at the time of contract execution. This fourth requirement is only applied at the time the contract was executed, not at time time of Injury.2 7. Recovery Fund Reviewer, Marlee McCormick, reviewed all the documents in the file. In her review, she noted that at the time of the contract arid the time work was performed, the Property was owned by the Stephen A. Thomas Trust, not by the Claimant Diana L. Thomas.

McMurren v. J.M.C. Builder, Inc., supra. RECEIVED 7.13.2018 ROC LEGAL

8. On April 10, 2018, the Registrar issued its Notice And Order Of Recovery Fund Ineligibility denying Claimant’s claim. Thereafter, on April 20, 2018, Claimant filed her request for hearing challenging the propriety of the Notice And Order Of Recovery Fund Ineligibility. 9. The Property was purchased by Stephen A. Thomas on or about July 4, 200I. 3 On or about May 14, 2013, the Property was transferred by deed to the Stephen A. Thomas Trust. 4 10. Respondent completed work on the project on or around December 8, 2015. On or about May 12, 2016, the Property was granted to the Diana Thomas Survivor's Trust. At the time the Recovery Fund reviewed Claimant's claim, the Property was owned by the Diana Thomas Survivor's Trust, not by the Claimant Diana L. Thomas. 11. No evidence has been introduced to prove that the Claimant has ever held title to the subject Property. The Claimant has testified that she was the co-grantor and co-trustee of her late husband’s Revocable Marital Trust, the Stephen A. Thomas Revocable Trust. Upon the passing of her husband, trust Property was transferred according to the terms of the Stephen A. Thomas Revocable Trust to the Diana Thomas Survivor's Trust.5 The Claimant testified that she is the Trustee of the Diana Thomas Survivor's Trust and offered into evidence a Certificate of Trust for the Diana Thomas Survivor's Trust which is consistent with her testimony. 12. The Claimant was not the owner the Property either at the time of the contract in this case nor at the time the contracted work was performed. At these relevant times, the Property was owned by the Stephen A. Thomas Revocable Trust. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. A preponderance of the evidence is:

3 State’s Exhibit 6. State’s Exhibit 7. State’s Exhibit 8. RECEIVED 7.13.2018 ROC LEGAL

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black’s Law Dictionary 1373 (10th ed. 2014). 3. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 5. An applicant to the Recovery Fund must meet the definition of a “person injured” as set forth in A.R.S. § 32-1131(3) which requires that the Claimant must own residential the real Property which is the subject of her claim to the Fund at either the time the contract was executed or at the time the injury accrued. 6. By a preponderance of the evidence, The Stephen A. Thomas Trust was the owner of record of the real estate located 1745 N 133rd Drive in Goodyear Arizona September 2, 2015 (the date that the residential construction contract with Landcare Unlimited LLC was made) on or around December 8, 2015.[the time the contracted work was completed].6 7. Claimant Diana L Thomas has failed to meet her burden of proof to demonstrate, by a preponderance of the evidence, that she was the owner of the real estate located 1745 N 133rd Drive in Goodyear Arizona either on September 2, 2015 (the date that the residential construction contract with Landcare Unlimited LLC was made) or at the time the contracted work was completed on or around December 8, 2015. 8. By a preponderance of the evidence, the Registrar’s Notice And Order Of Recovery Fund Ineligibility determination issued April 10, 2018 should be affirmed.

See, footnotes 2 and 3, supra. RECEIVED 7.13.2018 ROC LEGAL

RECOMMENDED ORDER

Based upon the foregoing, IT IS RECOMMENDED that the Registrar’s Notice And Order Of Recovery Fund Ineligibility determination issued April 10, 2018 be affirmed. FURTHER IT IS RECOMMENDED that this matter be remanded to the Registrar for such further action as may be necessary and proper.

Done this day, July 13, 2018. /s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to

Jeffrey Fleetham, Director Registrar of Contractors