FINACT2019A-01674-ROC-FinalAgencyAction-6698.pdf

2019A-01674-RFA-ROC · Registrar of Contractors · 2019-12-19

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

William and Barabra Holicz, Case No. 2019-01674 COMPLAINANTS, Docket No. 2019A-01674-RFA-ROC v. Matrix Management Inc., FINAL ADMINISTRATIVE DBA: Sun City Awning and Patio, DECISION AND ORDER License No. ROC 208365,

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 of each finding of fact or conclusion of law.

REGISTRAR’S ACCEPTANCE

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 accepts it.

CONCLUSION AND ORDER

Because the Registrar has accepted the administrative law judge’s decision, that

decision is the final administrative decision in this case and becomes effective on January

27, 2020

FINAL NOTE

On page 1, line 29 replace “April 24, 2019” with “June 7, 2019.” On page 3, line

26, after “the eligibility requirements” add “regarding property classification.”

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Dated December 18, 2019. By: /s/ Joseph Citelli ________________ Joseph Citelli Legal Assistant II Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail December 18, 2019 to: Respondent Matrix Management Inc DBA: Sun City Awning and Patio 12336 W Butler Dr Ste 400 El Mirage, AZ 85335 Complainants William and Barbara Holicz 10605 Mave Dr Orlando Park, IL 60467 Complainants William and Barbara Holicz 15568 Coral Pointe Dr Surprise, AZ 85374 Copy sent electronically this same date to: Registrar’s Counsel John Tellier, Assistant Attorney General Office of Administrative Hearings Antara Nath Rivera, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-01674 / DU

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 11.26.2019 ROC LEGAL

OAH ALJ Recommendations - AZROC <[email redacted]>

New ALJ Decision transmitted for ROC (2019A-01674-RFA-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Tue, Nov 26, 2019 at 7:40 AM To: [email redacted]

This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows:

Decision type: ALJ Decision Matter ID: 2019A-01674-RFA-ROC Filed by: OAH Filed on: 11/26/2019 Due Date for Final Agency Action (if applicable): 12/31/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-01674-RFA-ROC-ALJDecision- 6648.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 11.26.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William and Barbara Holicz, No. 2019A-01674-RFA-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Matrix Management Inc., DBA: Sun City Awning and Patio, ROC License: ROC 208365, 208366, RESPONDENT

HEARING: November 4, 2019 at 9:00 a.m. APPEARANCES: Complainant William Holicz appeared on his own behalf. John Tellier, Assistant Attorney General, appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________

FINDINGS OF FACT

1. On September 6, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF

RECOVERY FUND HEARING setting the above captioned matter for hearing at the Office of

Administrative Hearings at 9:00 a.m. on October 9, 2019. Prior to that date, Complainant requested a continuance. The hearing was continued to 9:00 a.m. on November 4, 2019. 2. The issue is whether an award and payout from the ROC’s Recovery Fund pursuant to ARIZ. REV. STAT. section 32-1154(G) is justified by the evidence. 3. No representative for Respondent Matrix Management Inc. appeared and the matter was convened in its absence at about 9:15 a.m. 4. Complainant paid Respondent $3,839.00 to install an awning at Complainant’s house located at 15568 West Coral Pointe Driver, Surprise, AZ 85374. 5. At all times pertinent to this matter, the Surprise, AZ property was a class 4.1 “non-primary/not in other classes residential” property. 6. On or about April 4, 2019, Complainant filed with the ROC a complaint alleging abandonment on Respondent’s part. The ROC issued a CITATION to Respondent, which resulted in a hearing being conducted on April 15, 2019. As a result of that hearing, the ROC determine that Respondent had violated ARIZ. REV. STAT. sections 32-1154(A)(1) and it revoked Respondent’s license effective April 24, 2019.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.26.2019 ROC LEGAL

7. On or about May 16, 2019, Complainant filed with the ROC a RECOVERY FUND CLAIM (Claim) requesting a payout of $3,389.00. On the Claim, Complainant listed his address as 10605 Maue Drive, Orland Park, IL 60467. 8. On or about July 26, 2019, ROC issued a NOTICE AND ORDER OF RECOVERY FUND INELIGIBILITY. 9. The ROC denied Complainant’s claim because the property was not a class 3 property. 10. At the hearing, the ROC introduced evidence that Complainant listed his address as 10605 Maue Drive, Orland Park, IL 60467 on all documents. The Maricopa County Assessor’s Office search revealed that Complainant’s home in Surprise, AZ was legally classified as class 4.1. 11. Additionally, the ROC presented evidence that the property classification laws changed effective August 27, 2019, eliminating any eligibility requirements related to property classification. However, the new law was not retroactive and, thus, did not apply to Complainant in this case. 12. At hearing, Complainant acknowledged that he lived in Orland Park, IL for six months and in Surprise, AZ for six months. Both properties were residential homes. Complainant paid taxes in both states. Complainant was victimized by Respondent when Respondent abandoned the project after Complainant paid Respondent $3,839.00. 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. Complainant filed a claim asserting that they meet the requirements to receive a payout from the recovery fund. As such, they bear the burden of proof in this matter. ARIZ. ADMIN. CODE § R2-19-119; Magness v. Ariz. Registrar of Contractors 234 Ariz. 428 (App. 2014). 3. 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 RECEIVED 11.26.2019 ROC LEGAL

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). 4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Indus. Comm’n 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.”). 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). 6. The purpose of the recovery fund is to provide improved protection for owners and lessees of property who contract for the construction or alteration of

residential structures. McMurren v. JMC Builders, 204 Ariz. 345 (App. 2003).

7. “The assessments received by the registrar for deposit in the fund shall be

held in trust for carrying out the purposes of the fund.” ARIZ. REV. STAT. § 32-1135.

8. “Person injured” means “any owner of residential real property which is

classified as class three property.#.#.and which is actually occupied or intended to be

occupied by the owner as a residence . . . who [is] damaged by the failure of a residential

contractor . . . to adequately build or improve a residential structure or appurtenance on

that real property.” McMurren at ¶ 8; see also ARIZ. REV. STAT. § 32-1131(B).

9. 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 [t]he maximum individual award from the residential contractor’s recovery fun is $30,000.00.” ARIZ. REV. STAT. § 32-1132.01(D). 10. Complainant has not shown that he is eligible for a payout from the recovery fund because the property is not a class 3 residential property as required. Even though the laws have changed and the eligibility requirements do not exist, the laws are not retroactive and Complainant is not eligible. 11. Considering the above, Complainant’s recovery fund claim should be denied. RECOMMENDED ORDER

RECEIVED 11.26.2019 ROC LEGAL

IT IS ORDERED that on the Registrar of Contractor’s decision to deny Complainant’s recovery fund claim is affirmed and that Complainant’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, November 23, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors