ALJDEC

98F-246-ROC · Registrar of Contractors · 1998-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On May 15, 1998, at 9:00 A.M., a hearing was held to determine if the Plaintiff was entitled to an award of damages from the Residential Contractors’ Recovery Fund (the “Recovery Fund”) pursuant to A.R.S. §§32- 1154(E) & 32-1132(A). Assistant Attorney General Michelle L. Wood represented the Registrar of Contractors (the “ROC”). The Plaintiff failed to appear. The record was kept open until approximately 9:30 A.M. to allow for the appearance of the Plaintiff or the receipt of any information which would constitute good cause for the Plaintiff’s absence or delay. No such information was received from or on the behalf of the Plaintiff. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. The Plaintiff failed to appear for the hearing scheduled on May 15, 1998, at 9:00 A.M. at the Office of Administrative Hearings located at 1700 West Washington Street, Suite 602, Phoenix, Arizona. The Notice of Recovery Fund Payout Hearing correctly states the date, time and place of this hearing. This Notice was sent by certified mail to the Plaintiff.

2. Beitman Roofing’s Class C-42 License No. 083053 was suspended on December 13, 1995. This license subsequently was revoked on December 21, 1995 and January 20, 1996. See State’s Exhibit 1.

3. On or about April 26, 1996, the Plaintiff entered into a contract with Beitman Roofing to perform roofing services. See State’s Exhibit 2.

4. On or about April 26, 1996, the Plaintiff contracted with Beitman Roofing when Beitman Roofing’s license was both suspended and revoked.

5. The Plaintiff has requested an award of damages from the Recovery Fund in the amount of $527.00. This request was denied by the ROC.

6. Assistant Attorney General Michelle L. Wood has requested the dismissal of the Plaintiff’s claim for an award of damages from the Recovery Fund.

CONCLUSIONS OF LAW

1. The Plaintiff has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The Plaintiff has failed to appear and present evidence supporting his position that he is entitled to an award of damages from the Recovery Fund.

3. The Plaintiff has failed to carry the burden of proving that he is entitled to an award of damages from the Recovery Fund. Accordingly, the undersigned Administrative Law Judge finds that the Plaintiff is not entitled to an award of damages from the Recovery Fund.

4. The undersigned Administrative Law Judge further finds that the Plaintiff is not entitled to an award of damages from the Recovery Fund because the Plaintiff contracted with a contractor whose license was revoked or suspended at the time of the contract. See A.R.S. §32-1132(A).

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge respectfully recommends that the Plaintiff be denied payment from the Residential Contractors’ Recovery Fund in the amount of $527.00. The undersigned Administrative Law Judge further recommends that this matter be remanded to the Registrar for dismissal and/or case closure. Done this day, May 15, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of May, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007 ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826