ALJDEC decisions subject to certification as final

2022A-02820-RFA-LS-ROC · Registrar of Contractors · 2022-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roger Lee Peterson and

Sandra Lynn Peterson,

COMPLAINANTS

Chad Daniel Gillespie & Jennifer Dawn

Gillespie, DBA: Premier Patio Covers,

License No. ROC 322337,

RESPONDENT

No. 2022A-02820-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 26, 2022

APPEARANCES: Complainants Roger Lee Peterson and Sandra Lynn Peterson appeared on their own behalf. Respondent Chad Daniel Gillespie and Jennifer Dawn Gillespie, doing business as Premier Patio Covers did not appear. The Arizona Registrar of Contractors was represented by Assistant Attorney General Justin Larson.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 322337 to Respondent.

On or about April 7, 2022, the Registrar received a complaint against Respondent from Complainants alleging abandonment with respect to the construction of an RV cover on their property. Complainants entered into a contract with Respondent on August 20, 2021, and paid Respondent a deposit of $7,608.00 of the total contract price of $15,216.00. Respondent performed no work on the project after the contract was signed.

As a result of the complaint, the Registrar issued a Citation against Respondent charging a possible violation A.R.S. § 32-1154(A)(1).

Respondent did not file an answer to the Citation.

On May 5, 2022, the Registrar issued a Final Administrative Decision and Order (Default) finding the violation and revoking Respondent’s license.

Complainants then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the deposit they had paid to Respondent for the project.

After seeking further information regarding whether Complainants occupied or intended to occupy the residential real property at issue, the Registrar concluded that Complainants’ failed to establish their intention to occupy the residential real property.

On or about June 27, 2022, the Registrar issued a Notice and Order of Recovery Fund Ineligibility of Claim for Administrative Payout, finding that Complainants were ineligible to access the Fund based solely on their lack of an intention to occupy the property as their primary residence.

Complainants requested a hearing, believing they were eligible for a payout from the Fund. In the hearing request, Ms. Peterson stated that she may not have been clear as to Complainants’ future intentions regarding the property. Ms. Peterson admitted Complainants were not living in Arizona full time, but asserted, in pertinent part, as follows:

Until we are able to build living space on our lot . . . , we plan to keep our house up here. Until we are able to have a patio cover built for our motor home, it’s not possible to stay longer in Arizona, to supervise a building project. It gets too hot to live in our RV. We’ve already spoken with a reputable contractor about building us a new home on our lot at Happy Trails. We fully intend to become Arizona residents once we are able to move our possessions into another house. The first step is having a patio cover built on our lot so our motorhome is shaded.

The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing, and a hearing was held on August 26, 2022.

Hearing Evidence

Katelyn Rolling, Legal Assistant II, testified that during her review of Complainants’ claim, she sought additional information from Complainants regarding how much time they lived in Arizona and whether they intended to live on the property as their primary residence going forward.

Ms. Rolling understood from her review that Complainants were “snowbirds.” That is, Complainants lived in North Dakota as their primary residence and, by their own admissions, only lived in Arizona from the middle of October through the end of April. Ms. Rolling also noted that Complainants both had North Dakota driver’s licenses. Ms. Rolling concluded that, because Complainants did not intend to occupy the property as their primary residence, they were not eligible to access the Fund.

Ms. Peterson testified as to Complainants’ intention to move to Arizona once they are able to build a home on their lot, but they cannot do that until they are able to stay in their motorhome to supervise the construction of their home. Ms. Peterson argued that the patio cover was necessary to enable them to stay in the motorhome longer than they mid-October to end of April time frame they currently stay in Arizona. Ms. Peterson admitted that Complainants did not intend to live in the motorhome permanently, but that they will stay there until they can move into the new home. The motorhome and new home are both located on the same lot. Ms. Peterson testified that Complainants needed the deposit they paid to Respondent refunded to afford the construction of a cover with a different contractor.

Mr. Peterson testified that Complainants plan to build a casita-type home on the property once they are present to supervise construction. Mr. Peterson asserted that if Complainants were unable to build the new home, they would stay in the motorhome. Mr. Peterson maintained that Complainants wanted the cover for the motorhome regardless of whether they stayed in the motorhome or the new home.

The Registrar argued that, because Complainants did not intend to reside in the motorhome as their primary residence, they were not eligible to access the Fund. The Registrar asserted that Complainants’ statements supported their intention to reside in a potential future home on the lot, which was not sufficient to establish eligibility.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish that the denial of a payout from the Fund was incorrect by a preponderance of the evidence.

“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.”

A.R.S. § 32-1132 provides, in pertinent part, as follows:

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

1. An individual who both:

(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.

(b) Actually occupies or intends to occupy the residential real property described in subdivision (a) of this paragraph as the individual's primary residence.

Emphasis added.

The evidence established that Complainants owned the property on which the carport, an appurtenance, was to be built by Respondent and that Respondent failed to build the carport after receiving a deposit from Complainants.

Accordingly, the only question remaining was whether Complainants intended to occupy the residential real property as their primary residence.

Complainants’ statements during the review of the claim and at the hearing, both established that Complainants lived in Arizona more than half the year. While Complainants retained their North Dakota driver’s licenses, they were actually present in Arizona more than they were present in North Dakota in recent years.

Complainants’ testimony established their intention to reside in their motorhome for a longer time period after the carport was built with the plan to build a casita-type home on the property. Mr. Peterson also stated that, if for some reason Complainants were unable to build the home, they would live in the motorhome while in Arizona.

While Complainants expressed an intention to build a future structure on the property, that was not in conflict with their intention to occupy the residential real property as their primary residence after the carport was completed.

The Registrar’s seemed to argue that, if Complainants did not intend to live in the motorhome as their primary residence going forward, they were not eligible to access the Fund. Nothing in the statute requires that a claimant intend to reside in or under the structure at issue in the contract to be eligible for a payout from the Fund.

After review of all the evidence, the Tribunal concludes that the denial of Complainants’ claim to the Fund was incorrect and should be reversed.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainants receive a payout from the Residential Contractors’ Recovery Fund in the amount of $7,608.00.

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, September 15, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000