FINACT2018A-3390-ROC.pdf

2018A-3390-ROC · Registrar of Contractors · 2019-04-23

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Pamela J Burge, Case No. 2018-3390 COMPLAINANT, Docket No. 2018A-3390-RFA-ROC v. CKBR LLC, FINAL ADMINISTRATIVE DECISION DBA: Complete Kitchen and Bath Remodeling, AND ORDER License No. ROC 266889, 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.

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 hereby accepts

it.

CONCLUSION

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 May 28, 2019.

FINAL NOTE

On page 1, lines 14-15 replace “Assistant Attorney General John Tellier appeared on behalf of

Respondent CKBR LLC, DBA: Complete Kitchen and Bath Remodeling” with “Assistant Attorney

General John Tellier appeared on behalf of the Arizona Registrar of Contractors”.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Dated April 18, 2019.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

Copy mailed via USPS First Class mail April 18, 2019 to: Respondent CKBR LLC DBA: Complete Kitchen and Bath Remodeling 4202 E Elwood St Ste 20 Phoenix, AZ 85040 Complainant Pamela J Burge 10013 W Lakeview Cir N Sun City, AZ 85351

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge

Office of the Attorney General John Tellier, Assistant Attorney General Case No. 2018-3390 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.8.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pamela J Burge, No. 2018A-3390-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

CKBR LLC, DBA: Complete Kitchen and Bath Remodeling ROC License: ROC 266889

RESPONDENT.

HEARING: March 19, 2019 APPEARANCES: Complainant Pamela J. Burge appeared on behalf of herself. Assistant Attorney General John Tellier appeared on behalf of Respondent CKBR LLC, DBA: Complete Kitchen and Bath Remodeling ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. In May of 2018, Craig Segond entered into a residential construction

contract with CKBR LLC, DBA: Complete Kitchen and Bath Remodeling (“Complete

Kitchen”). Under the contract, Complete Kitchen agreed to remodel the kitchen in

Mr. Segond’s home located at 10013 W. Lakeview Circle North in Sun City, Arizona

(“property”), for $20,800.

2. Complainant Pamela J. Burge did not own the property. Ms. Burge is

Mr. Segond’s sister. Ms. Burge paid Complete Kitchen $12,480 for the project.

3. Complete Kitchen abandoned the project and Ms. Burge filed a complaint

with the Arizona Registrar of Contractors (“Registrar”).

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.8.2019 ROC LEGAL

4. On September 26, 2018, the Registrar issue a Final Administrative Order which contained findings that Complete Kitchen violated Ariz. Rev. Stat. (“A.R.S.”) §§ 32-1154 (A)(1)(2) and (3).1 The Registrar revoked Complete Kitchen’s license.

5. On or about October 16, 2018, the Registrar received Ms. Burge’s

application for a payout from the recovery fund. Ms. Burge identified herself as the

“injured person.” Ms. Burge alleged in the claim that the amount of damages was

$12,480. Ms. Burge submitted copies of cancelled checks made out to Complete

Kitchen totaling $12,480. Ms. Burge also wrote on the application, “The contractor did

not perform any work. So no damages other than money collected [and] no work

completed.”

6. On or about December 27, 2018, the Registrar issued a notice denying

the claim because Ms. Burge did not own the property, and because Mr. Segond had

not made any payments to Complete Kitchen.

7. Ms. Burge filed an appeal.

8. On January 25, 2019, the Registrar issued a notice setting the matter for

hearing for March 19, 2019. The Notice of Hearing provided that the issue set for

determination was “whether Complainant is eligible to access the Fund under A.R.S. § 32-1131 et seq.” 9. A hearing was held on March 19, 2019. 10. Ms. Burge testified on behalf of herself and presented the testimony of Mr. Segond. The Registrar presented the testimony of Recovery Fund Reviewer Marlee McCormick, and submitted exhibits 1 through 8. 11. Ms. Burge explained that she was representing Mr. Segond when she filed a claim for a payout from the recovery fund. A Registrar investigator told Ms. Burge to obtain permission from Mr. Segond to represent him in the complaint. 12. Ms. Burge and Mr. Segond provided testimony that Mr. Segond agreed to pay back Ms. Burge for the money that she paid Complete Kitchen. Mr. Segond

The Registrar Investigator’s jobsite inspection shows that he could only substantiate complaint item #3, that Complete Kitchen failed to complete the project. The issues regarding the water heater and the electrical line were corrected before the jobsite inspection. RECEIVED 4.8.2019 ROC LEGAL

testified that he planned to pay back Ms. Burge after he received proceeds from an inheritance. 13. The Registrar contended that Ms. Burge was not eligible for a payout

because she did not own the property. The Registrar also contended that Mr. Segond

did not make any payments to Complete Kitchen.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.

2. “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 3. 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. . . .” Complainant bears the burden of proof to establish that the Registrar’s determination of ineligibility was incorrect by a preponderance of the evidence.4 4. A.R.S. § 32-1131(3) provides that a person injured is the owner of residential real property. 5. It is undisputed that Ms. Burge did not own the property. 6. Mr. Segond did not make any payments to Complete Kitchen. 7. Ms. Burge failed to establish by a preponderance of the evidence that Mr. Segond incurred compensable damages. ORDER MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY 1220 (8th ed. 1999). 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). RECEIVED 4.8.2019 ROC LEGAL

IT IS ORDERED that Complainant’s appeal is denied.

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.

Done this day, April 8, 2019. /s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors