ALJDEC decisions subject to certification as final

2018A-3867-RFA-ROC · Registrar of Contractors · 2019-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2019 APPEARANCES: Complainant Co Ko appeared on behalf of herself. Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors. Geraldo Acosta appeared on behalf of Respondent Acosta’s Pool & Spa’s, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On June 28, 2019, the Registrar of Contractors, (Registrar), issued a “Notice of Recovery Fund Eligibility/Payout Hearing” setting the above-captioned matter for hearing on July 29, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. 2. 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. 3. Complainant Co Ko appeared and testified. The Registrar presented the testimony of Doug Ulmer, a Recovery Fund claims reviewer. 4. On June 4, 2018, Complainant entered into a contract with Respondent to install a pool at her home located at 11217 W. Roanoke Avenue in Avondale, AZ. 5. At the time that the contract was executed by Complainant and Respondent, the Registrar had not issued a license to Respondent. 6. The Registrar did not issue a license to Respondent until June 25, 2018. 7. On or about August 20, 2018, Complainant filed a complaint with the Registrar alleging that Respondent performed poor work in connection with the pool installation. 8. The Registrar investigated the complaint. 9. On December 26, 2018, the Registrar issued a Citation against Respondent. 10. Respondent failed to timely respond to the Citation pursuant to A.R.S. §32-1155(A). 11. On January 16, 2019, the Registrar issued a Final Administrative Order and revoked Respondent’s license based upon Complainant’s August 15, 20198 complaint. 12. On or about May 16, 2019, Complainant filed a claim with the Registrar’s Residential Recovery Fund (hereinafter “Recovery Fund”). 13. 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. 14. In a “Notice and Order of Denial of Recovery Fund Claim” dated June 6, 2019, the Registrar informed Complainant that his request for payment from the Fund had been denied. 15. 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. 16. At the hearing, Complainant explained that she was informed by a representative from the Registrar that Respondent’s license was in process and that she could still request a payout from the fund. Complainant asserted that she should receive a payout from the fund due to the damages that she incurred as a result of Respondent’s poor work. 17. 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 Respondent at the time that the contract was executed. CONCLUSIONS OF LAW 1. 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. 2. 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). 3. 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). 4. 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). 5. Respondent had not been issued a license at the time that the contract was executed in this matter. 6. Consequently, the Registrar appropriately denied Complainant’s Recovery Fund claim. ORDER IT IS ORDERED that Co Ko’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, August 19, 2019.

/s/ Velva Moses-Thompson 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