ALJDEC decisions subject to certification as final

2020A-05228-RFA-LS-ROC · Registrar of Contractors · 2021-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Whaley,

COMPLAINANT

PHX Construction LLC,

License No. ROC 319421,

RESPONDENT

No. 2020A-05228-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 12, 2021

APPEARANCES: Steven Whaley on his own behalf; no one appeared for Respondent; John Tellier, Esq. for the Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On February 26, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Recovery Fund Hearing setting the above captioned matter for hearing at 9:00 a.m. on March 29, 2021 at the Office of Administrative Hearings.

The Notice of Hearing shows that the issue for hearing is whether an award and payout from the Contractors’ Recovery Fund pursuant to Ariz. Rev. Stat. section 32-1131 et seq. is justified by the evidence.

No representative for Respondent appeared on March 29, 2021 and the matter was convened in its absence at about 9:15 a.m. ROC then moved to continue the matter because the attorney assigned to the matter was sick. The motion was granted and the hearing was conducted on April 12, 2021.

No representative appeared for Respondent on April 12, 2021.

Complainant Steven Whaley appeared and testified on his own behalf. Mr. Whaley’s wife Mary Stringer also testified for Complainant.

ROC presented the testimony of Legal Assistant Tedi White.

Ms. White testified that Mr. Whaley was found to be ineligible for a payout from the recovery fund because Mr. Whaley did not own the property at issue and because the Respondent’s license was suspended at the times pertinent to this matter.

On September 22, 2020, Mr. Whaley entered a contract with Respondent that called for Respondent to perform work at a home owned by Angeline Stringer, who is Mary Stringer’s mother. On that date, Mr. Whaley paid Respondent $8310, but no work was completed. The contract price was $27,000.

Mr. Whaley, Mary Stringer, and Angeline Stringer all live in the home.

Mary Stringer has power of attorney for Angeline Stringer and the purpose of the work was to make improvements for Angeline. Mary Stringer is also the beneficiary named in a Beneficiary Deed for the property.

On November 4, 2020, Mr. Whaley filed with ROC a complaint against Respondent. Mr. Whaley’s complaint shows that after entering the contract, he learned that Respondent’s license had been suspended on September 22, 2020 and was reinstated on September 25, 2020.

On December 11, 2020, ROC issued to Respondent a Citation alleging that it may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(3), (A)(12) and (A)(17).

Respondent failed to file a timely answer to the Citation and through an Order dated December 31, 2020, ROC found that Respondent had committed the violations alleged through its Citation and it revoked Respondent’s license.

On January 20, 2021, Mr. Whaley filed with ROC a Recovery Fund Claim requesting a payout of $8310.

ROC’s Ms. White evaluated the claim.

On February 1, 2021, ROC issued a Notice and Order of Recovery Fund Ineligibility.

The Notice of Ineligibility shows that Mr. Whaley did not meet the eligibility requirements because the Respondent’s license was suspended on September 22, 2020 and because Mr. Whaley did not own the property at issue.

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.

Mr. Whaley filed a claim asserting that he meets the requirements to receive a payout from the recovery fund. As such, he bears the burden of proof in this matter. Ariz. Admin. Code § R2-19-119(B).

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).

When the terms of a statute are unambiguous, the tribunal is required to apply those terms as written. Ramsey v. Ariz. Registrar of Contractors 241 Ariz. 102, ¶ 6 (App. 2016).

“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.

A claimant who is damaged by an act, representation, transaction or conduct of a residential contractor licensed by ROC that is in violation of ROC’s statutes or rules, may be eligible for a payout from the recovery fund. Ariz. Rev. Stat. § 32-1132(A).

Ariz. Rev. Stat. section 32-1132 also provides the following pertinent limitations:

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B. Only the following claimants are eligible for an award from the residential contractors' recovery fund:

1. An individual who [ ]:

(a) Owns residential real property that is damaged by the failure of a residential contractor to adequately build or improve a residential structure or appurtenance.

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C. In order for a claimant to be eligible for an award from the residential contractors' recovery fund, the contractor whose actions damaged the claimant must have been appropriately licensed at one of the following times:

1. The date that the underlying contract was signed.

2. The date that the first payment was made.

3. The date that the underlying work first commenced.

D. For the purposes of this section, "appropriately licensed" means the residential contractor held a valid residential contractor license that was issued pursuant to this chapter and that was not canceled, in inactive status, expired, suspended or revoked.

The preponderance of the evidence shows that Mr. Whaley did not own the property that was damaged by Respondent. Consequently, Mr. Whaley does not meet the requirements of section 32-1132(B)(1)(a).

The preponderance of the evidence shows that Respondent’s license was suspended on September 22, 2020, which was the date Mr. Whaley entered the contract and the date on which he made his first payment. Because Respondent never started any work on the project, Mr. Whaley does not meet the requirements of section 32-1132(C).

Mr. Whaley has not proven by a preponderance of the evidence that he meets the eligibility requirements for a payout from the fund.

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

RECOMMENDED ORDER

IT IS ORDERED that the Registrar of Contractor’s decision to deny Steven Whaley’s recovery fund claim is affirmed and that Mr. Whaley’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.

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-137160-45720000Done this day, April 28, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000