ALJDEC decisions subject to certification as final

2024A-06544-RFA-LS-ROC · Registrar of Contractors · 2025-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Chauza,

COMPLAINANT,

AP Fiberglass Pools & Consulting LLC,

License No. ROC 323411,

RESPONDENT.

No. 2024A-06544-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 20, 2024

APPEARANCES: Robert A. Chauza and Patricia R Chauza (herein, Complainant) appeared on their own behalf. No person appeared on behalf of Respondent AP Fiberglass Pools & Consulting LLC. Assistant Attorney General Charles Hover III represented the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Registrar Exhibits 1 through 7.

_____________________________________________________________________

FINDINGS OF FACT

1. On November 7, 2024, the Arizona Registrar of Contractors (Registrar) issued a Notice of Hearing setting the above-entitled matter for hearing on December 20, 2024. The Registrar mailed copies of the Notice of Hearing to the parties at the addresses of record.

2. The Registrar administers a Residentiary Recovery Fund (the Fund). The Notice of Hearing provided that the issue set for determination in this matter was Complainant’s appeal of the Registrar’s determination regarding Complainant’s Fund Claim.

3. On November 8, 2024, the Office of Administrative Hearings issued an order by email advising the parties the hearing would be conducted virtually by videoconference or telephone via Google Meet and providing the instructions to connect to the hearing.

4. Respondent did not appear by videoconference or telephone and had not previously requested that the hearing be continued. Although the start of the hearing was delayed a minimum of 15 minutes, Respondent did not appear. Consequently, Respondent did not present any evidence.

5. The hearing was convened and conducted through Google Meet on December 20, 2024. At hearing, the Registrar presented the testimony of Tedi Quezada, legal assistant for the Registrar. Complainant Robert Chauza testified on behalf of himself.

BACKGROUND

6. On June 9, 2024, Complainant had filed a Licensed Complaint form (Complaint) with the Registrar alleging poor work and abandonment in connection with a construction contract for installation of a fiberglass pool by Respondent on residential real estate property. The Complaint indicated that the contract amount was for $113,330.00 and that Respondent had been paid $98,000.00.

7. The Registrar conducted an investigation into the complaint.

Registrar Investigator Carter conducted a job-site inspection on July 10, 2024, determining that, although excavation had been performed, the contracted-for pool was not in place. Because Respondent’s ROC license had been revoked prior to the jobsite inspection, Registrar Investigator Carter did not issue a Directive for Respondent to correct the work.

8. On July 16, 2024, the Registrar issued a Citation against Respondent’s license for alleged violations of Ariz. Rev. Stat. § 32-1154(A)(1).

9. Respondent did not file a timely answer to the Citation.

10. On August 5, 2024, the Registrar issued a Final Administrative Decision and Order determining that Respondent had violated Ariz. Rev. Stat. § 32-1154(A)(1).

RECOVERY FUND CLAIM

11. By letter dated August 21, 2024, the Registrar provided Fund Claim criteria to Complainants. The Registrar explained, in pertinent part:

The Recovery Fund (Fund) is a form of financial protection provided by licensed Arizona residential contractors to residential homeowners. The Fund is governed by statutes and available to persons who own and occupy, or intend to occupy, residential real property that is damaged by a residential contractor. In some circumstances, the Fund is also available to (1) limited liability companies; (2) revocable living trusts; (3) planned communities or unit owners’ associations; and (4) lessees of residential real property. See A.R.S. § 32-1132(B).

12. While Complainant submitted relevant information for consideration of the Fund Claim, including bids to repair or complete the contract, the Registrar ultimately determined that Complainant was not eligible to access the Fund.

13. On the Fund Claim form, Complainant indicated that they did not “currently occupy or intend to currently occupy” the property as their primary residence.

14. On the Fund Claim form, the Complaint indicated that the contract amount was for $107,300.00 and that Respondent had been paid $98,000.00.

15. Robert A. Chauza and Patricia R Chauza, as Trustees of Chauza Living Trust, purchased the residential real estate property in February 2022.

16. On October 11, 2024, the Registrar notified Complainant through a Notice and Order of Recovery Fund Ineligibility that they were not eligible for payout from the Fund. On its review of the Fund Claim and other available information, the Registrar found Complainant had indicated that they did not occupy the residence as a primary residence.

17. Complainant filed an appeal regarding the determination.

18. At hearing, the Registrar argued that, due to the fact that Complainant does not occupy the subject residential property as their primary residence, the Registrar must find that the Complainant/Trust is not eligible for a recovery from the Fund.

19. At hearing, Complainant explained the background on the residence. They purchased the one-story property as a future retirement home with the intent to be in, retire to, Arizona within two to four years. At the time of its purchase, the home was a new build, essentially complete except for some fixtures; the home was not a rental home at any time since their purchase. Complainant visited Arizona in 2022 for a couple months at the time they purchased the home. Complainant visited in Arizona in early 2023 for about four months and on one other occasion later in the year. Complainant visited in Arizona for more than 6 month in 2024 - in early 2024 for four months and then in summer and again in the fall.

20. Complainant argues they “intend” to move to Arizona and that they move things down to Arizona every time they come; however, Complainants have not yet moved to Arizona full time.

21. While Complainant did not develop this argument, they posit the statute is unfair regarding treating out-of-state residents who were harmed by an Arizona contractor on their Arizona property differently than Arizona residents.

22. The Registrar’s position with regard to “intent to occupy” is based on the existence of the following types of circumstances: that the home is/was under renovations and the resident is unable to live there at the time of the contractor’s work but intends to move back in; that the resident is not now able to move back into the home due to the contractor’s poor or abandoned work; or that home is a new build and the owner is not in the home yet awaiting the close of escrow.

23. In the instant case, the Registrar’s position is that Complainant does not fall within the criteria for access to the Fund both because the subject residential real property is not occupied as Complainants’ primary residence and, further, that the Complainants’ intent to use the property in the future as a retirement home is not an equivalent of the statutory parameter of “or intend to occupy.”

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .”

Ariz. Rev. Stat. § 32-1132(B)(3) restricts the persons who are eligible for awards from the Fund, as follows, in pertinent part:

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.

Complainant bears the burden of proof to establish that the Registrar’s determination of ineligibility for access to and a payout from the Fund is 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.”

After review of all the evidence, the Administrative Law Judge concludes that Complainant failed to establish by a preponderance of the evidence that the Registrar’s determination was improper. The weight of the evidence shows that the Registrar correctly determined that Complainant/Trust is ineligible for access to the Fund pursuant to Ariz. Rev. Stat. § 32-1132(B)(3)(c). Consequently, the Registrar appropriately denied Complainants’ Fund claim.

RECOMMENDED ORDER

IT IS ORDERED that Complainant Robert Chauza’s 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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, January 13, 2025.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Registrar of Contractors

c/o Legal Department

[email redacted]

Robert Chauza

2629 Alice Dr.

West Jordan, UT 84088

[email redacted]

AP Fiberglass Pools & Consulting LLC

P O Box 12157

Scottsdale, AZ 85267

[email redacted]

By: OAH Staff