ALJDEC decisions subject to certification as final

2015A-5116-ROC-RF · Registrar of Contractors · 2016-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Craig Anthony Connor and

Nicole Dereen Connor

COMPLAINANT

-v-

Tycor Construction LLC

License No(s). KB-2.281873-D

RESPONDENT

No. 2015A-5116-ROC-RF

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 1, 2016

APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General Thomas Raine, Esq. Craig Anthony Connor and Nicole Dereen Connor (hereinafter “Complainants”) appeared through Craig Anthony Connor (hereinafter “Mr. Connor”). Tycor Construction LLC (hereinafter “Tycor”) appeared through its qualifying party and officer, Greg Keenan (hereinafter “Mr. Keenan”).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

The Registrar issued License No. KB-2.281873-D to Tycor. Greg Kennan is Tycor’s qualifying party.

On December 14, 2015, Complainants filed a complaint with the Registrar against Tycor for poor work and abandonment with regard to a construction project involving the remodeling of Complainants’ home at 3111 E. Wescott Drive, Phoenix, Arizona 85050. According to the complaint, Complainants had entered into a contract with Tycor on November 15, 2015, and Tycor had last performed work on their residence on December 8, 2015.

The Registrar investigated the complaint.

On January 25, 2016, the Registrar issued a Directive to Tycor. The Directive provides, in relevant part, as follows:

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Work incomplete & abandonment:

Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Complaint Item 2: Poor work quality

Verified floor tile has hollow areas grout popping and lippage in several areas.

On February 11, 2016, the Registrar verified that Tycor did not comply with the Directive through its investigator, Steve Klein.

On March 1, 2016, the Registrar issued a Citation and Complaint charging Tycor with violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(22).

On March 23, 2016, the Registrar issued a Final Administrative Decision and Order finding that Respondent had violated A.R.S. § 32-1154(A)(3) and (22) as charged in the complaint. Pursuant to the order, the Registrar suspended Tycor’s license for a period of 7 days. The Registrar also ordered that Tycor pay a civil penalty of $500 for the violation of A.R.S. § 32-1154(A)(22).

On or about July 25, 2016, Complainants filed a claim to the Residential Contractors’ Recovery Fund (“Fund”) with the Registrar.

On August 29, 2016, the Registrar issued a Notice of Claim for Administrative Payout that provides, in relevant part, as follows:

After review of the claim and all supporting documentation, the Fund has determined that Complainants are to be awarded $23,615.43 in the form of payment issued by the Fund.

Tycor filed a timely request for hearing on the Registrar’s Notice of Claim for Administrative Payout.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding the amount and/or propriety of the payment from the Fund.

A hearing was held on November 1, 2016.

At hearing, Mr. Keenan testified on Tycor’s behalf. The Registrar presented the testimony of the Supervisor of the Recovery Fund, Doug Ulmer (hereinafter “Mr. Ulmer”), and submitted eight exhibits.

Mr. Ulmer testified that he is the Supervisor of the Recovery Fund. Mr. Ulmer stated that he had personally reviewed Complainants’ claim for payment from the Fund. Mr. Ulmer said that he determined that Complainants were eligible for payment from the Fund for their actual damages.

Mr. Ulmer testified that the Registrar must review all documentation that is necessary on a claim for a payout from the Fund before the Registrar makes a decision for a payout. Mr. Ulmer stated that he reviewed the entire file in this matter, including the 3 bids, Complainant’s repair costs and receipts. Mr. Ulmer determined that a proper payout from the Fund for Complainants’ actual damages is the sum of $23,615.43.

Mr. Ulmer testified that he created a Recovery Fund Cost spread sheet in order to determine Complainants’ actual damages. Mr. Ulmer testified that he calculated Complainants’ actual damages by adding the lowest bid from Copper State Remodeling in the amount of $22,141.48 to Complainants’ repair costs in the amount of $2,973.95. Mr. Ulmer stated that $1,500 was disallowed from Complainant’s actual damages because $1,500 was the amount of money still owing on Complainants’ contract with Tycor.

Mr. Ulmer’s testimony is found to be credible.

Mr. Keenan contended that the Administrative Payout in the amount of $23,615.43 is exorbitant. Mr. Keenan testified that he was not given a fair opportunity to contest the Administrative Payout because only 1 of the 3 bids submitted to the Registrar was from a contractor with an active residential contracting license. Additionally, Mr. Keenan contended that of the 2 bids which were not used in the calculation of the Administrative Payout, one was obtained from an inactive contractor and the other was from an active commercial contractor. Mr. Keenan also testified that the bid from Copper State Remodeling, which the Registrar used to calculate Complainants’ actual damages, should not have been used. Mr. Keenan contended that the bid from Copper State Remodeling should not have been used to calculate Complainant’s actual damages because it included a quote from a potential subcontractor, Floors Unlimited, who had a suspended license at the time that the bid was submitted. However, the Floors Unlimited quote was prepared on May 26, 2016.

Administrative notice is taken of Floors Unlimited’s License record as reflected on the Registrar’s public website on November 21, 2016. Such License record reflects that Floors Unlimited License No. 086526 was first issued on June 4, 1990, and was suspended for non-renewal from the dates of June 1, 2016 to August 15, 2016. The License record also reflects that the license is currently active and was not suspended during any other time period during 2016.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 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. . . .” Respondent bears the burden of proof to establish that the proposed 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 Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainants’ actual damages. The award appears to properly remedy the workmanship and abandonment violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $23,615.43.

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.

Done this day, November 21, 2016.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors