ALJDEC decisions subject to certification as final
2020A-05600-RFA-ROC · Registrar of Contractors · 2021-10-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Christine S. Mascal,
COMPLAINANT,
v.
Gallagher Contracting and Design, LLC
License No. ROC 327536,
RESPONDENT.
No. 2020A-05600-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 4, 2021
APPEARANCES: Complainant Christine S. Mascal appeared on behalf of herself. Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant Christine S. Mascal is an attorney who owns a law practice located at 2905 NE Broadway, Portland, Oregon 97232. In 2019, Ms. Mascal purchased a home located at 12743 W. Gable Hill Drive, Sun City West, Arizona, 85375 (the property). Ms. Mascal works remotely while in the State of Arizona.
2. In 2020 and 2021, the property was designated as a class 4 Non-Primary residence by the Maricopa County Assessor’s Office.
3. On or about October 15, 2020, Respondent Gallagher Contracting and Design, LLC (Gallagher) agreed to extend a patio and build a pergola at the property.
4. On or about November 9, 2020, Gallagher started work.
5. On or about November 11, 2020, Gallagher stopped work.
6. On or about November 21, 2020, Ms. Mascal filed a complaint with the Arizona Registrar of Contractors (the Registrar) alleging abandonment on the part of Gallagher. At the time, Complainant had paid 66% of the amount of the contract to Gallagher.
7. The Registrar assigned Investigator Mike Nation to investigate the complaint. Investigator Nation conducted a job-site inspection and issued a Directive against Gallagher’s license.
8. On January 26, 2021, the Registrar issued a Citation against Gallagher’s license.
9. On February 16, 2021, the Registrar issued a Final Administrative Decision Order and Default (Default) finding that Gallagher had violated A.R.S. §§ 32-1154(A)(1),(3), and (22); A.A.C. R4-9-108(a). The Registrar revoked Gallager’s license.
10. On February 17, 2021, Ms. Mascal filed a claim for a payout from the Registrar’s recovery fund.
11. Registrar Investigator Kyle Nelson reviewed the claim and a deed to the property provided by Ms. Mascal.
12. On May 6, 2021, Investigator Nelson inquired with Ms. Mascal by e-mail whether she had any other verification to show that she resided at or intended to reside at the property.
13. Ms. Mascal notified Investigator Nelson by e-mail on May 7, 2021 and May 11, 2021, that she stayed at the property six months out of the year. See Exhibit 5, Bates ROC 020 and 022.
14. On May 10, 2021, the Registrar issued a Notice And Order of Recovery Fund Ineligibilty (Order) finding that Ms. Mascal was ineligible for an award from the fund because the property was not Ms. Mascal’s primary residence.
15. On May 11, 2021, Ms. Mascal relayed to Investigator Nelson by e-mail that she spent at least half of her time at the property. See Exhibit 5, Bates ROC 021.
16. On May 14, 2021 at about 8:18 a.m., Investigator Nelson notified
Ms. Mascal by e-mail that the following documents would be helpful in determining
Ms. Mascal’s intent to occupy the property as her primary residence:
Driver’s license listing the property address
Redacted tax return page listing the property address
Voter registration card listing the property address
Documentation confirming the property classification was changed to a “primary residence.”
17. Ms. Mascal filed a timely request for hearing to the May 10, 2021 Order.
18. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
19. On June 14, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on July 30, 2021 at 9:00 a.m.
20. On September 22, 2021, approximately five months after the Registrar denied Ms. Mascal’s claim, Ms. Mascal applied for an Arizona driver’s license and registered to vote in Arizona. See Exhibits 101 and 102.
21. A hearing was held on October 4, 2021.
22. Ms. Mascal testified on behalf of herself and submitted exhibits 101 through 103.
23. The Registrar presented the testimony of Investigator Nelson and submitted exhibits 1 through 6.
24. At hearing, Ms. Mascal stated in her opening statement that she has occupied the property and intends to occupy the property. Ms. Mascal stated that she has been staying in Arizona most of the time.
25. Ms. Mascal testified that she intends to occupy the property from October to the end of March or April of next year. Ms. Mascal stated that she does much of her work from a remote location, including the property. Ms. Mascal stated that in 2020, she spent more than half her time at the property.
26. When Ms. Mascal was asked on cross-examination why she did not apply for an Arizona driver’s license in 2019 when she purchased the property, Ms. Mascal responded that a lot of work needed to be done on the house to prepare it for occupancy and that she had a law practice in Oregon.
27. Ms. Mascal offered into evidence a record from the local water department for the property. See Exhibit 103. The record shows that Ms. Mascal used water at the property for only five months out of the year beginning in September of 2020 and ending in September of 2021. See id.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainants bear the burden to establish that they are eligible to
receive a payout from the Fund by a preponderance of the evidence.
3. “A preponderance of the evidence is such proof as convinces the trier of
fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
4. The Registrar owes a fiduciary duty to manage the Fund for the benefit of all eligible homeowners who have suffered actual damages caused by a licensed contractor’s statutory violations as defined by the statutes in effect when the injury accrued. Before authorizing a payout, the Registrar must determine whether a claimant is eligible under the statutes that govern his claim.
5. Complainant has failed to establish by a preponderance of the evidence that she occupied or intended to occupy the property as her primary residence. Ms. Mascal provided self-serving testimony that she has and intends to occupy the property as her primary residence. However, Ms. Mascal took no action that would show her intent to occupy the property as her primary residence until five months after the claim was denied.
6. Considering the above, Ms. Mascal’s recovery fund claim should be denied.
RECOMMENDED ORDER
IT IS ORDERED that the Registrar of Contractor’s decision to deny Christine S. Mascal’s recovery fund claim is affirmed and that Ms. Mascal’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, October 22, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors