ALJDEC decisions subject to certification as final

2023A-04745-CHC-ROC · Registrar of Contractors · 2024-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brenda Pate,

COMPLAINANT

Bill's Awnings Inc.

License No. ROC 266610,

RESPONDENT

No. 2023A-04745-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 19, 2023

APPEARANCES: Complainant Brenda Pate appeared via Google Meet on her own behalf. Assistant Attorney General Seth T. Hargraves appeared via Google Meet on behalf of the Arizona Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s exhibit 1-6 were admitted.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about April 21, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment by Respondent at Complainant’s mobile home in Mesa, Arizona. Complainant paid $3,611.89 to Respondent.

On May 3, 2023, as a result of the complaint, the Registrar issued a Citation against Respondent charging a possible violation of A.R.S. § 32-1154(A)(1).

Respondent failed to file a timely answer to the Citation. A Final Administrative Decision and Order (Default) was entered on May 19, 2023, whereby Respondent’s license was revoked.

On or about May 25, 2023, Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of down payment.

On or about June 5, 2023, the Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant was not entitled to a payout as Complainant did not meet the eligibility requirements.

Complainant Respondent requested a hearing, and the Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on December 19, 2023.

Hearing Evidence

Dylan Warwick, Legal Assistant II for the Registrar, testified that he reviewed the Final Administrative Decision regarding the underlying complaint, and obtained additional evidence concerning the property in question.

Mr. Warwick testified that he researched the Mesa Assessor’s office to determine the nature of the property. Mr. Warwick testified that it was listed as a “non-primary residence.”

Next, Mr. Warwick testified that on June 21, 2023, he sent Complainant an e-mail requesting clarification between the property address and mailing address and if she occupied or intended to occupy the mobile home. Complainant responded, “[r]etiring and going to live these 6 months out of the year.”

Mr. Warwick testified that based upon this, he deemed Complainant ineligible for the Recovery Fund and issued a denial as to the same.

Complainant testified on her own behalf. She testified that she was originally given Respondent’s name from her insurance company after a storm damaged her awning. After she paid and Respondent failed to perform the work, her insurance company recommended the Recovery Fund.

Next, Complainant testified that while she was completing the paperwork she used her Michigan address to ensure she received the notifications.

Complainant testified that she pays $9,400 in lot rent, taxes, upkeep and the like.

Further, Complainant testified that she was planning on retiring in May 2024, but could not say that she would be living in Mesa full time or more than 6 months.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides:

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.

Complainant bears the burden of proof to establish that she meets the requirements of the Fund 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.”

While the tribunal sympathizes with Complainant over this matter, unfortunately, she offered no persuasive evidence to demonstrate that she intended to occupy the property as her primary residence

After review of all the evidence, the tribunal concludes that the Registrar correctly denied the Recovery Fund claim. Accordingly, Complainant was not entitled to a payout from the Fund.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar affirm its decision to deny access to the 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, January 3, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Brenda Pate

3403 E Main Street

Mesa, AZ 85213

Bill's Awnings Inc.

[email redacted]

Mona Baskin

[email redacted]

By: OAH Staff