ALJDEC decisions subject to certification as final
2018A-4036-RFA-ROC · Registrar of Contractors · 2020-06-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Byron A Tanigawa,
COMPLAINANT
v.
Mair Development Group LLC,
ROC License: ROC 319267
RESPONDENT
No. 2018A-4036-RFA-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: May 13, 2020
APPEARANCES: Complainant Byron A. Tanigawa appeared on behalf of h himself. Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
FINDINGS OF FACT
At all times relevant to this matter, Respondent Mair Development Group, LLC (Mair) held a Class B-1 General Commercial Contractor License. Mair was not a residential contractor.
Complainant Byron A Tanigawa appeared and testified. The Registrar
presented the testimony of Katelyn Rolling, a Legal Assistant II at Registrar.
On or about July 1, 2018, Mr. Tanigawa entered into a contract with
Mair would repair remodel Mr. Tanigawa’s kitchen and floors.
On or about August 28, 2018, Mr. Tanigawa filed a complaint with the Registrar alleging poor workmanship on the part of Mair.
Registrar Investigator Bierma investigated the complaint and issued a
Directive to Mair. After Mair failed to correct the items listed in the Registrar issued a Citation against Mair’s license.
On November 1, 2018, the Registrar issued a Default.
On or about March 25, 2019, Mr. Tanigawa filed a claim with the Registrar’s Residential Recovery Fund (Recovery Fund).
Ms. Rolling reviewed Mr. Tanigawa’s claim.
On December 30, 2019, the Registrar issued a “Notice and Order of Denial of Recovery Fund Claim”.
The Registrar denied the claim because it found that Mair was not a
residential contractor as defined under Ariz. Rev. Stat. section 32-1131(3).
Mr. Tanigawa filed an appeal to the December 30, 2019 Notice and Order of Denial of Recovery Fund Claim.
The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
At hearing, Mr. Tanigawa contended that he should be eligible for a payout from the fund because he is a homeowner who was damaged by the poor work of a licensed contractor. Mr. Tanigawa argued that he should be denied a payout due to a ““technicality”. Mr. Tanigawa also asserted that he was not aware that Mair was not a licensed contractor.
The Registrar contended Mr. Tanigawa is not eligible for a payout because the recovery fund does not apply to homeowners who has suffered a loss due to the conduct of a commercial contractor. The Registrar argued that the requirement that a contractor be a residential contractor is more than a “technicality”, but a law enacted by the legislature that was intended to restore homeowners who have been damaged by residential contractors.
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).
If a claimant was not damaged by the acts of a licensed residential contractors, the claimant is not for a payout from the recovery fund. See Ariz. Rev. Stat. section 32-1132.
It is undisputed that Mair is not a residential contractor.
Consequently, the Registrar appropriately denied Complainant’s Recovery Fund claim.
ORDER
IT IS ORDERED that Byron A Tanigawa’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.
-54864001
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-137160-45720000Done this day, June 2, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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