ALJDEC decisions subject to certification as final

2017A-5960-ROC · Registrar of Contractors · 2019-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2019 APPEARANCES: Amy Elizabeth Neuenschwander on her own behalf; Joseph Montefour for Respondent; John Tellier, Esq. for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On December 3, 2018 the Registrar of Contractors (“ROC”) issued a Notice of Recovery Fund Eligibility/Payout Hearing setting the above captioned matter for hearing on January 11, 2019. 2. The issue for hearing is Complainant Amy Elizabeth Neuenschwander’s appeal of ROC’s denial of her claim for a payout from the Residential Contractors’ Recovery Fund. 3. Respondent Industrious Construction LLC holds license number 305528 issued by ROC on May 17, 2016. 4. Wayne William Montefour is Respondent’s qualifying party and a member of the LLC. Joseph Andrew Montefour and Joseph Vito Montefour are also members of the LLC. 5. Joseph Andrew Montefour was formerly a member of M Squared Construction LLC. 6. In September 2015, Joseph Andrew Montefour sold his membership in M Squared to other members of that LLC. M Squared filed with the Arizona Corporation Commission Articles of Amendment on February 19, 2016 showing that Joseph A. Montefour was no longer a member of the LLC. ROC shows Joseph Andrew Montefour’s date of disassociation from M Squared as March 8, 2016. 7. On March 7, 2016, the City of Phoenix issued a certificate of occupancy for a house located at 369 East Weldon Avenue, showing that 369 East Weldon Avenue LLC was the owner. 8. On April 18, 2016, Ms. Neuenschwander entered a contract to purchase the house from 369 East Weldon LLC. The sale was completed on May 4, 2016, and the deed recorded on June 15, 2016. 9. On August 7, 2017, Ms. Neuenschwander filed with ROC a complaint against Joseph Montefour/M Squared Construction LLC license number 270959. In her complaint, Ms. Neuenschwander alleged that Joseph Montefour/M Squared Construction LLC had performed poor work at the house she purchased from 369 East Weldon LLC. 10. After investigating Ms. Neuenschwander’s complaint against M Squared, ROC issued a Citation naming Ms. Neuenschwander as the Complainant and Industrious as the Respondent. ROC named Industrious as the Respondent because it determined that Industrious and not M Squared had performed the work referenced in Ms. Neuenschwander’s complaint. 11. Ms. Neuenschwander and Industrious participated in a hearing conducted on March 19, 2018 at which the allegations in Ms. Neuenschwander’s complaint and the Citation that ROC issued to Industrious were addressed. Among other things, the Administrative Law Judge in that matter concluded that Industrious had acted as a contractor using M Squared’s license and that Industrious’s work did not meet the workmanship standards. 12. Through a Final Administrative Decision and Order dated April 18, 2018, ROC adopted the Administrative Law Judge’s findings and it suspended Industrious’s license for thirty days. 13. On July 20, 2018, Ms. Neuenschwander filed with ROC a Recovery Fund claim naming Joseph Montefour, Industrious Construction LLC license number 305528 as the contractor. 14. Through a Notice and Order of Recovery Fund Ineligibility issued on November 19, 2018, ROC informed Ms. Neuenschwander that she had been found ineligible. 15. ROC based its determination of ineligibility on its findings that Industrious’s license was not issued until May 17, 2016, whereas Ms. Neuenschwander’s purchase contract was dated April 18, 2016, with the deed conveying the property being dated May 4, 2016. As such, ROC determined that Ms. Neuenschwander did not meet Ariz. Rev. Stat. section 32- 1132(A)’s requirement that the contractor’s license must have been in good standing on the date of the contract. 16. Ms. Neuenschwander argues to the effect that because Joseph Andrew Montefour did not disassociate from M Squared until March 8, 2016, which was after Phoenix issued the certificate of occupancy, and Industrious was licensed on May 17, 2016, which according to Ms. Neuenschwander was before she took possession of the home on June 15, 2016, ROC’s denial of her claim was in error. 17. Industrious was not licensed when it contracted with 369 East Weldon LLC. CONCLUSIONS OF LAW Ms. Neuenschwander bears the burden of proof and the standard of proof is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. A preponderance of the evidence is: 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).

Any “person injured” by a licensed residential contractor’s violation of ROC’s statutes or rules may be awarded up to $30,000 from the residential recovery fund. But an “award from the fund shall not be available to persons injured by an act, representation, transaction or conduct of a residential contractor who was not licensed pursuant to this chapter or whose license was in an inactive status, expired, cancelled, revoked, suspended or not issued at the time of the contract.” Ariz. Rev. Stat. § 32- 1132(A)(underscore added). Ms. Neuenschwander has not proven by a preponderance of the evidence that she meets the requirements for a payout from the recovery fund because Industrious Construction LLC was not licensed at the time it entered the contract with 369 East Weldon LLC. Consequently, Ms. Neuenschwander’s appeal should be dismissed.

RECOMMENDED ORDER IT IS ORDERED that the Registrar of Contractors’ decision to deny Amy Elizabeth Neuenschwander’s recovery fund claim is affirmed and that Ms. Neuenschwander’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 will be 40 days from the date of that certification.

Done this day, January 23, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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