ALJDEC decisions subject to certification as final
2018A-2966-RFA-ROC · Registrar of Contractors · 2020-03-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Brandon Michael Abney,
COMPLAINANT.
v.
F H B Flagstaff Home Builder Inc.,
ROC License: ROC 214887,
RESPONDENT.
No. 2018A-2966-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 20, 2020
APPEARANCES: Jason Bliss, Esq. appeared on behalf of Complainant Brandon Michael Abney. Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
On February 28, 2017, Respondent F H B Flagstaff Home Builder, Inc.
(F H B) presented a new home construction contract to Complainant Brandon Michael Abney and Laura Faircloth. At the time of contract, Ms. Faircloth requested that additional items be included in the contract.
On March 2, 2017, the parties signed the contract.
From February 28, 2017 to March 2, 2017, there were no changes made to the terms of the written contract.
From March 2, 2017 to March 3, 2017, F H B’s contractor license was suspended.
On March 17, 2017, the additional items requested by Ms. Faircloth on February 28, 2017 were reduced to writing. However, the writing was not signed.
On April 1, 2017, F H B began work under the contract.
On or about June 27, 2018, Mr. Abney filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship on the part of F H B.
On September 28, 2018, the Registrar issued a Citation against F H B’s
license for alleged violations of Ariz. Rev. Stat. sections 32-1154 (A)(3) and (A)(22).
A hearing was held on January 7, 2019 regarding the Registrar’s
Citation.
Administrative Law Judge Diane Mihalsky issued a recommended
decision that included a finding that Respondent had violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
On April 2, 2019, the Registrar issued a Final Administrative Decision and
Order (Order) adopting Judge Milhasky’s recommended Decision. The Order was effective on May 12, 2019. Pursuant to the Order, the Registrar revoked F H B’s license on May 12, 2019.
On August 21, 2019, Mr. Abney and Ms. Faircloth filed a Recovery Fund
claim.
Mr. Abney and Ms. Faircloth reported on the claim form that the date of
the contract was March 2, 2017.
On December 20, 2019, the Registrar denied the claim because F H B
was not licensed at the time that the contract was executed.
The Registrar received an appeal to the claim denial.
The matter was referred to the Office of Administrative Hearings (OAH) for
an evidentiary hearing.
On January 21, 2020, the Registrar issued a Notice of Hearing setting
the matter for hearing on March 20, 2020, by the OAH in Phoenix, Arizona.
A hearing was held on March 20, 2020.
At hearing, Ms. Faircloth explained that she did not know why she and
Mr. Abney waited until March 2, 2017 to sign the contract. Ms. Faircloth explained that she attempted to review the contractor’s license status and recalled seeing a green image. Ms. Faircloth asserted that the Registrar’s website was difficulty to navigate.
Complainant contended that March 2, 2017 was not the date that the
parties entered into the contract. Complainant argued that the parties had a meeting of the minds on February 28, 2017, and that there was no difference between the contract terms on February 28, 2017 and March 2, 2017. Furthermore, Complainant contended that March 17, 2017 could be the time of the contract because it is the date that the additional items were reduced to a writing.
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 section R2-19-119.
The issues in this matter is that of a preponderance of the evidence. Ariz.
Admin. Code section 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 Recovery 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).
The preponderance of the evidence shows that the time of contract
execution was March 2, 2017. F H B’s license was suspended and not in good standing at the time of contract execution.
Consequently, the Registrar appropriately denied Complainant’s Recovery
Fund claim.
ORDER
IT IS ORDERED that Brandon Michael Abney’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 11, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors