ALJDEC decisions subject to certification as final

2019A-01674-RFA-ROC · Registrar of Contractors · 2019-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William and Barbara Holicz,

COMPLAINANT

v.

Matrix Management Inc.,

DBA: Sun City Awning and Patio,

ROC License: ROC 208365, 208366,

RESPONDENT

No. 2019A-01674-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

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

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.

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.

No representative for Respondent Matrix Management Inc. appeared and the matter was convened in its absence at about 9:15 a.m.

Complainant paid Respondent $3,839.00 to install an awning at Complainant’s house located at 15568 West Coral Pointe Driver, Surprise, AZ 85374.

At all times pertinent to this matter, the Surprise, AZ property was a class 4.1 “non-primary/not in other classes residential” property.

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.

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.

On or about July 26, 2019, ROC issued a Notice and Order of Recovery Fund Ineligibility.

The ROC denied Complainant’s claim because the property was not a class 3 property.

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.

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.

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

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.

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).

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).

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.”).

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

“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.

“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).

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).

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.

Considering the above, Complainant’s recovery fund claim should be denied.

RECOMMENDED ORDER

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