ALJDEC decisions subject to certification as final

2023A-00419-RFA-LS-ROC · Registrar of Contractors · 2023-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jerry Trout

COMPLAINANT

Bill's Awnings Inc.

License No. ROC 090162,

RESPONDENT

No. 2023A-00419-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 9, 2023

APPEARANCES: Complainant Jerry Trout appeared on his own behalf. Respondent Bill’s Awnings Inc. did not appear. The Arizona Registrar of Contractors was represented by Assistant Attorney General Wesley M. Cox.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 090162 to Respondent.

On or about January 6, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to a construction project in Overgaard, Arizona (the workmanship complaint).

As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging a possible violation of A.R.S. § 32-1154(A)(3), namely of A.A.C. R4-9-108(b).

Respondent did not file an answer to the Citation.

On or about March 10, 2023, the Registrar issued a Final Administrative Decision and Order (Default) finding the violation and revoking Respondent’s license.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of completing or repairing the project. On the claim form, Complainant indicated that he did not occupy or intend to occupy the subject property as his primary residence.

On or about April 14, 2023, the Registrar issued a Notice and Order of Recovery Fund Ineligibility, finding that Complainant was not eligible for an award from the Fund because Complainant did not actually occupy or intend to occupy the property as his primary residence.

Complainant requested a hearing, believing he was eligible for an award. Complainant indicated that he considers the Overgaard, Arizona home a “split-primary residence.”

The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on August 9, 2023.

Hearing Evidence

Dylan Warwick, Legal Assistant for the Fund, testified that he reviewed the claim submitted by Complainant in determining Complainant’s eligibility for an award from the Fund.

Mr. Warwick noted that, because Complainant indicated on the claim that he did not occupy or intend to occupy the property as his primary residence, Mr. Warwick investigated the status of the property.

The Navajo County Assessor’s Office property information available online indicated that the subject property was classified as Non- Primary Residence/Rental. Complainant and his wife were listed as the owners with a Tucson, Arizona address.

At hearing, Complainant testified that he and his wife spend approximately half their time in Overgaard and half their time in Tucson each year. Complainant indicated that this year, they had spent more time in Overgaard than in Tucson. Complainant stated that their church home was in Overgaard and he played in an orchestra in Overgaard.

At hearing, Sandra Trout testified that they cannot reliably get mail in Overgaard, so she marked that Overgaard was not their primary residence so they would get mail at the Tucson address. Ms. Trout admitted that, for purposes of voting, registration of vehicles, and driver licenses, she and Complainant use the Tucson residence as their address because of the lack of mail delivery in Overgaard. According to Ms. Trout, “you can only pick one” address for those purposes, so they had to choose Tucson to ensure they received the mail pertaining to each.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(B) 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.

The Registrar bears the burden of proof to establish that the proposed payout from the Fund is correct 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. § 42-12053 provides, in pertinent part, as follows:

B. For the purpose of classifying owner-occupied residential property under sections 42-12003, 42-12004 and 42-12052, the department shall adopt standard criteria for use in determining whether the property is considered to be the owner's or relative's primary residence, including:

1. The period of occupancy each year.

2. The owner's registered voting precinct.

3. The owner's driver license address.

4. The registration address of the owner's motor vehicles.

5. Other appropriate indicators of primary residency.

The evidence presented at hearing established that Complainant used the Tucson address as the basis for his voter registration, driver license address, and motor vehicle registration.

After review of all the evidence, the Tribunal concludes that the denial of an award from the Fund was appropriate because Complainant did not occupy or intend to occupy the Overgaard residence as a primary residence. Accordingly, Complainant was not entitled to a payout from the Fund.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm its denial of Complainant’s claim for a payout from the Residential Contractors’ Recovery 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, August 29, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

Bill's Awnings Inc.

[email redacted]

Jerry Trout

[email redacted]

Registrar of Contractors

[email redacted]

By: OAH Staff