FINACT2018A-1632-RFA-ROC.pdf

2018A-1632-RFA-ROC · Registrar of Contractors · 2020-01-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Steven Paul McKeage, Case No. 2018-1632 COMPLAINANT, Docket No. 2018A-1632-RFA-ROC v. Floors Unlimited Inc., FINAL ADMINISTRATIVE License No. ROC 086526, DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on February 17, 2020. FINAL NOTES Replace all instances of “Mr. White” with “Ms. White”. On page 1, line 19 replace “Floor” with “Floors.” On page 2, line 8 replace “$9,232.48” with “$9,232.38”. On page 2,

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 line 14 replace “-$8,276.29” with “-$8,482.38”. On page 3, line 4 replace “32-1132(A)” with “32-1132.01(B)”. Dated January 8, 2020. By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail January 8, 2020 to: Respondent Floors Unlimited Inc 21609 N 12th Ave Ste 100 Phoenix, AZ 85027 Complainant Steven Paul McKeage 4033 E Mitchell Dr Phoenix, AZ 85018 Copy sent electronically this same date to: Registrar’s Counsel John Tellier, Assistant Attorney General Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2018-1632/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 12.31.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Paul McKeage, No. 2018A-1632-RFA-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION

Floors Unlimited, Inc., ROC License: ROC 086526, RESPONDENT.

HEARING: December 12, 2019 APPEARANCES: Complainant Steven Paul McKeage appeared on behalf of himself. Assistant Attorney General Seth Hargraves appeared on behalf of the Arizona Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. In March of 2017, Respondent Floors Unlimited, Inc. (Floors Unlimited) agreed to remodel Complainant Steven Paul McKeage’s floor for $18,464.77. 2. In April of 2018, Mr. McKeage filed a complaint with the Arizona Registrar of Contractors (Registrar) against Floors Unlimited. Mr. McKeage alleged that Floor Unlimited performed poor work in connection with a home remodeling project. 3. On May 15, 2018, Registrar Investigator Matt Gunstra issued a DIRECTIVE to Floors Unlimited after completing a job site inspection. The Registrar substantiated that Floors Unlimited’s work failed to meet minimum workmanship standards. In the DIRECTIVE, Investigator Gunstra directed Floors Unlimited to correct several items that were listed in Mr. McKeage’s complaint, by May 31, 2018. Floors Unlimited failed to do so. 4. On June 4, 2018, the Registrar issued a CITATION against the license of Floors Unlimited. Through the CITATION, the Registrar alleged that Floors Unlimited may have violated ARIZ. REV. STAT. section 32-1154(A)(3)(specifically, ARIZ. ADMIN. CODE section R4-9-108; ARIZ. REV. STAT. section 32-1154(A)(22).

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12.31.2019 ROC LEGAL

5. On November 6, 2018, the Registrar issued a FINAL ADMINISTRATIVE DECISION AND ORDER (Order) and found that Floors Unlimited violated ARIZ. REV. STAT. sections 32-1154(A)(3) and (22). 6. On July 31, 2019, the Registrar received Mr. McKeage’s claim for a payout from the Recovery Fund. Mr. McKeage paid $3,212.66 to Flooring Pro’s to correct the work performed by Floors Unlimited. However, Flooring Pro’s is not a licensed contractor in the State of Arizona. Mr. McKeage also submitted a repair cost in the amount of $750 for air duct cleaning. Mr. McKeage owed Floors Unlimited $9, 232.48 under the contract. 7. Recovery Fund Claims Reviewer Tedi White calculated Mr. McKeage’s compensable damages by subtracting the amount left owing on the contract from the cost to repair. Mr. White did not include Mr. McKeage’s payment to Flooring Pro’s in the calculation because Flooring Pro’s is not a licensed contractor. Mr. McKeage’s compensable actual damages were -$8,276.29. 8. On September 27, 2019, the Registrar issued a NOTICE AND ORDER OF RECOVERY FUND CLAIM DENIAL to Mr. McKeage. The Registrar informed Mr. McKeage that he was prohibited by statute from receiving a payment from the fund because he had not incurred compensable actual damages. 9. Mr. McKeage requested a hearing the Registrar’s determination. 10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 11. On November 8, 2019, the Registrar issued a NOTICE OF HEARING setting the above-captioned matter for hearing on December 12, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. 12. At hearing, Mr. McKeage testified on behalf of himself. The Registrar presented the testimony of Mr. White and submitted exhibits 1 through 15. 13. Mr. McKeage asserted that the poor work performed by Floors Unlimited had not been fully corrected. Mr. McKeage contended that he should he should receive a payout from the fund due to Floors Unlimited’s poor work.

RECEIVED 12.31.2019 ROC LEGAL

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. 2. 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. . . .” Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.1 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”2 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.”3 4. After review of all the evidence, the Tribunal concludes that Mr. McKeage 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 Mr. McKeage had not incurred compensable actual damages. 5. Consequently, the Registrar appropriately denied Mr. McKeage’s Recovery Fund claim. RECOMMENDED ORDER IT IS ORDERED that Steven Paul McKeage’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 is forty days after the date of that certification.

1 See A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B) (1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY 1220 (8th ed. 1999) RECEIVED 12.31.2019 ROC LEGAL

Done this day, December 31, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors