ALJDEC decisions subject to certification as final

2022A-04673-RFA-LS-ROC · Registrar of Contractors · 2024-12-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rebecca R. Stanke,

COMPLAINANT,

AMERICA RECYCLEAN, LLC

DBA: American Remodel

License No. ROC 327603,

RESPONDENT.

No. 2022A-04673-RFA-LS-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: December 13, 2024

APPEARANCES: Complainant Rebecca R. Stanke appeared on her own behalf. Respondent America Recyclean, LLC, doing business as American Remodel, failed to appear. Assistant Attorney General Charles Hover III represented the Arizona Registrar of Contractors. Gail Mathews appeared as a witness for the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: The Arizona Registrar of Contractors’ Exhibits 1-18

FINDINGS OF FACT

Background and Procedure

According to the Arizona Registrar of Contractors’ (“Registrar”) public website, on February 3, 2020, the Registrar issued License Number 327603, Specialty Dual CR-61 Carpentry, Remodeling and Repairs contracting license to America Recyclean, LLC, doing business as American Remodel (“Respondent”). Justin Jean Laporte is listed on the license as the Qualifying Party and the sole Member of Respondent.

On or about June 8, 2022, the Registrar received a Complaint filed by Rebecca R. Stanke (“Complainant”) against Respondent alleging abandonment with respect to the remodel project performed by Respondent. The Registrar assigned Steve Philpott (“Investigator Philpott”) to investigate the Complaint.

Investigator Philpott conducted a Jobsite Inspection at the project site on June 22, 2022. During that inspection, Investigator Philpott took photographs of Respondent’s work. After the inspection, Investigator Philpott drafted Jobsite Inspection Notes.

On June 22, 2022, Investigator Philpott issued a Written Directive from the Registrar to Respondent due to having substantiated Complainant’s allegations. Respondent was put on notice that it had until 5:00 p.m. on July 11, 2022, to notify the Registrar of its compliance with the Written Directive or face discipline pursuant to A.R.S. § 32-1154(A)(22) and A.R.S. § 32-1154(E).

Respondent failed to perform all of the required corrective work. Consequently, Investigator Philpott referred the Complaint to the Registrar’s Legal Department.

On July 13, 2022, the Registrar issued a Citation to Respondent for alleged violations of A.R.S. §§ 32-1154(A)(1), 32-1154(A)(3), namely A.A.C. R4-9-108 (a) and (b), 32-1154(A)(16), and 32-1154(A)(22).

After receiving Respondent’s Written Answer to the Citation, the Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing to determine whether the Registrar had cause to discipline Respondent’s license based upon Respondent’s alleged violations of this State’s contracting laws.

On September 16, 2022, an administrative hearing was held before the Office of Administrative Hearings.

On or about October 6, 2022, the Office of Administrative Hearings transmitted the Administrative Law Judge Decision to the Registrar. The Administrative Law Judge Decision recommended that discipline be imposed against Respondent’s contracting license as the Administrative Law Judge concluded that Respondent had violated the charged provisions of this State’s contracting laws. The Administrative Law Judge Decision specifically recommended that Respondent’s license be suspended for thee (3) days and that Respondent pay a civil penalty in the amount of $500.00.

On October 25, 2022, the Administrative Law Judge Decision was accepted by the Registrar.

On December 4, 2022, the Final Administrative Decision and Order became effective.

On or about July 29, 2024, the Registrar received Complainant’s claim for payment from the Residential Contractors’ Recovery Fund (“Fund”) in the amount of $32,913.53.

On October 2, 2024, the Registrar issued a Notice and Order of Recovery Fund Ineligibility.

Complainant appealed the Registrar’s Recovery Fund claim denial and the matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

Hearing Evidence

At the hearing, the Registrar called Gail Mathews as a witness. Complainant testified on her own behalf. Respondent did not appear. All of the Registrar’s exhibits were admitted.

Ms. Mathews is a Legal Assistant II for the Registrar and she reviewed Complainant’s claim to the Fund. Ms. Mathews testified that she reviewed the County Assessor’s website to ascertain the legal class of the property and discovered that the property at issue is classified as a rental property, and the home in which Complainant resides, in Apache Junction, is shown to be her primary residence. Ms. Mathews further testified that the subject property is owned by a trust as a business entity. Ms. Mathews also researched the address for the subject property and discovered that it has an active Airbnb listing. Consequently, Ms. Mathews determined that the property is a business property, not a residence.

Ms. Mathews testified regarding a February 3, 2022 Assignment of Business Interest that was executed by Complainant and her husband as co-trustees of The Stanke Living Trust, that assigned “all of our right, title and interest in the business entity known as Quadmanor Vacation Rental.” Quadmanor is the name of the property at issue in this matter, and is listed as a vacation rental, “Hosted by Rebecca” for 12 years. On the advertisement for Quadmanor on the Airbnb website, it states that Complainant lives in Apache Junction, Arizona.

The Coconino County Treasurer’s Statement of Taxes Due states that the property is a Rental Residence, has been such since at least 2015, and has been assessed and paid as such each year.

The Pinal County Assessor’s records show that the home located at 1720 E. McKellips Blvd., in Apache Junction, Arizona, in which Complainant resides, is classified as Owner Occupied Residential.

Ms. Mathews testified that on September 27, 2024, she emailed Complainant the following in pertinent part:

I need a signed written statement, under penalty of perjury, of your specific intent to occupy as a primary residence, including a timeline of what your intent is with this specific property.

The evidence that I have shows that this is an active business property as a vacation rental. I have found the property on various vacation rental websites, as well as it is listed in the Trust as a business rental.

Complainant responded, “I was told by Kaitlyn Rollins that I do not need a timeline, has that changed. I do intend to occupy as my primary residence . . . . Actually re-reading this I think you’re asking for an approximate timeline which is the Stankes intend to occupy our home in Munds Park as our primary residence following our retirement.” Complainant failed to provide the clearly requested written statement under penalty of perjury. Further, Complainant did not even provide an approximate timeframe within which she intends to occupy the home, other than to state upon retirement, which could be years in the future.

Ms. Mathews testified that due to Complainant’s failure to provide the requested documentation, she based her decision on the objective information available to her, including the trust documentation, the County Assessor’s information, and the advertising information for the property.

Ms. Mathews testified that the Registrar issued a Notice of Ineligibility to Complainant based upon the fact that Complainant does not occupy or intend to occupy the property as is required by A.R.S. § 32-1132(B)(3)(c).

A damages analysis was not completed due to Complainant’s ineligibility.

Ms. Mathews testified that based upon her investigation, the property is an investment property rather than residential. Ms. Mathews further testified that the Registrar’s determination may have been different had Complainant attested under penalty of perjury to the fact that she and her husband intend to occupy the home. Complainant failed to do so.

Complainant testified that she and her husband purchased the home in 2006, for the home to be their retirement home. Complainant testified that initially they had not intended to use the home as a vacation rental, and that it is not a full time rental. Complainant further testified that she and her husband spent their retirement savings to complete renovations so that they could eventually live in the home.

Complainant could not testify to a definitive timeframe within which she and her husband intend to reside in the home. Complainant specifically testified that she “can’t give a date.” Complainant could only testify that they “intend to move in one day.” While Complainant’s husband is currently retired, Complainant explained that she cannot reside in the house due to her employment. Complainant could not provide the Tribunal with any timeframe as to when she plans to retire.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. The matter was properly brought before the Office of Administrative Hearings.

Complainant bears the burden of establishing by a preponderance of the evidence that the Fund improperly denied her claim.

“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. § 32-1133.01(A) provides that “if a contractor license has been revoked or has been suspended as a result of an order to remedy a violation of this chapter, the registrar may order payment from the residential contractors’ recovery fund to remedy the violation.”

Pursuant to A.R.S. § 32-1132(B):

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

3. A trust to which all of the following apply:

(a) The trust is a revocable living trust.

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

(c) All of the trust's trustors actually occupy or intend to occupy the residential real property described in subdivision (b) of this paragraph as their primary residence.

In this case, it is undisputed that Complainant currently does not occupy the residence. The credible, probative, and substantial evidence of record establishes that the home is legally classified as a rental property, and the home in which Complainant resides, in Apache Junction, is shown to be her primary residence. Further, the property is taxed and paid as a Rental Residence, and has been since at least 2015. Complainant has been utilizing the property as a vacation rental home for at least twelve years. Moreover, Complainant purchased the home in 2006, and 18 years later, is still not residing in it and could not attest under penalty of perjury to the Registrar, nor could Complainant testify under oath, as to when she intends to occupy the home, other than to state that she intends to do so “one day.” The objective evidence coupled with Complainant’s amorphous and tenuous assertions leads the Tribunal to conclude that Complainant has failed to establish that she is eligible to receive an award from the Fund.

Therefore, the undersigned Administrative Law Judge concludes that the Registrar properly denied Complainant’s claim to the Fund. However, nothing in this Order would prevent Complainant from seeking a monetary award against Respondent from a civil court of competent jurisdiction.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that Complainant’s appeal be denied.

IT IS FURTHER RECOMMENDED that the Registrar affirm the denial of Complainant’s claim to the Fund.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, December 31, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Rebecca R. Stanke

[email redacted]

AMERICA RECYCLEAN, LLC

DBA: America Remodel

[email redacted]

Charles Hover III

Assistant Attorney General

[email redacted]

By: OAH Staff