ALJDEC decisions subject to certification as final
2024A-01951-RFA-LS-ROC · Registrar of Contractors · 2024-11-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Yago Martins,
COMPLAINANT,
v.
Hula Construction Inc.,
License No. ROC 261460,
RESPONDENT.
No. 2024A-01951-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 4, 2024
APPEARANCES: Yago Martins appeared on his own behalf. No one appeared on behalf of Respondent. Assistant Attorney General Mona Baskin represented the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: Registrar Notice of Hearing Packet; Registrar Exhibits 1 through 9; Complainant Exhibits (18 pages, undesignated).
_____________________________________________________________________
FINDINGS OF FACT
On September 12, 2024, the Arizona Registrar of Contractors (ROC) issued a Notice of Recovery Fund Hearing setting the above captioned matter for hearing at 1:00 p.m. on November 4, 2024 with the Arizona Office of Administrative Hearings.
The Notice of Hearing shows that Yago Martins (Complainant) appealed the ROC determination regarding a denial of payout from the Recovery Fund. The issue for hearing is whether an award and payout from the Contractors’ Recovery Fund pursuant to Ariz. Rev. Stat. § 32-1131 et seq. is justified by the evidence.
No representative for Respondent appeared.
Complainant appeared and testified on his own behalf.
ROC presented the testimony of Dylan Warwick, Legal Assistant II.
Mr. Warwick testified that Mr. Martins was found to be ineligible for a payout from the recovery fund because the Respondent’s license was suspended at the times pertinent to this matter.
Respondent’s license was suspended on November 9, 2023.
On January 31, 2024, Mr. Martins entered a contract with Respondent for construction of a block wall. The contract price was $10,200.00.
On February 16, 2024, Mr. Martins filed with ROC a complaint (Complaint) against Respondent. Mr. Martins’ Complaint states that Respondent’s work was incomplete and of poor workmanship.
On March 26, 2024, ROC issued to Respondent a Citation alleging that it may have violated Ariz. Rev. Stat. §§ 32-1154(A)(1), (A)(2)(b), (A)(3) and (A)(17).
Respondent failed to file a timely answer to the Citation and through an Order dated April 18, 2024, ROC found that Respondent had committed the violations alleged through its Citation and it revoked Respondent’s license.
On April 30, 2024, Mr. Martins filed with ROC a Recovery Fund Claim requesting a payout of $3,000.00.
ROC’s Mr. Warwick evaluated the claim.
On August 29, 2024, ROC issued a Notice and Order of Recovery Fund Ineligibility.
The Notice of Ineligibility shows that Mr. Martins did not meet the eligibility requirements for two reasons: (a) because the Respondent’s license was suspended on when Respondent contracted with Mr. Martins, and (b) Mr. Martins used an unlicensed contractor to complete the work.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
Mr. Martins filed a claim asserting that he meets the requirements to receive a payout from the recovery fund. As such, he bears the burden of proof in this matter. Ariz. Admin. Code R2-19-119(B).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
When the terms of a statute are unambiguous, the tribunal is required to apply those terms as written. Ramsey v. Ariz. Registrar of Contractors 241 Ariz. 102, ¶ 6 (App. 2016).
“The assessments received by the registrar for deposit in the fund shall be held in trust for carrying out the purposes of the fund.” Ariz. Rev. Stat. § 32-1135.
A claimant who is damaged by an act, representation, transaction or conduct of a residential contractor licensed by ROC that is in violation of ROC’s statutes or rules, may be eligible for a payout from the recovery fund. Ariz. Rev. Stat. § 32-1132(A).
Ariz. Rev. Stat. § 32-1132 also provides the following pertinent limitations:
****
C. In order for a claimant to be eligible for an award from the residential contractors' recovery fund, the contractor whose actions damaged the claimant must have been appropriately licensed at one of the following times:
1. The date that the underlying contract was signed.
2. The date that the first payment was made.
3. The date that the underlying work first commenced.
D. For the purposes of this section, "appropriately licensed" means the residential contractor held a valid residential contractor license that was issued pursuant to this chapter and that was not canceled, in inactive status, expired, suspended or revoked.
Ariz. Rev. Stat. § 32-1132.01 also provides the following pertinent limitations:
****
B. An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:
1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.
2. Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.
The preponderance of the evidence shows that Respondent’s license was suspended on January 31, 2024, which was the date Mr. Martins entered the contract and the date on which he made his first payment. Because Respondent was not appropriately licensed at that time, Mr. Martins does not meet the requirements of Ariz. Rev. Stat. § 32-1132(C).
The preponderance of the evidence shows that the actual damages in this matter are not able to be established due to Mr. Martins having utilized an unlicensed person to perform the work. Therefore, Mr. Martins does not meet the criteria set forth in Ariz. Rev. Stat. § 32-1132.01(B).
The Administrative Law Judge concluded that Mr. Martins has not proven by a preponderance of the evidence that he meets the eligibility requirements and damages criteria for a payout from the recovery fund.
Considering the above, Mr. Martins’ recovery fund claim should be denied.
RECOMMENDED ORDER
IT IS ORDERED that the Registrar of Contractor’s decision to deny Yago Martins’ recovery fund claim is affirmed and that Mr. Matins’ 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.
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000Done this day, November 25, 2024.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Yago Martins
[email redacted]
Hula Construction Inc.
[email redacted]
By: OAH Staff