ALJDEC decisions subject to certification as final

2018A-3390-ROC · Registrar of Contractors · 2019-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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”). 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 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 This matter lies within the Registrar’s jurisdiction. “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] 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] A.R.S. § 32-1131(3) provides that a person injured is the owner of residential real property. It is undisputed that Ms. Burge did not own the property. Mr. Segond did not make any payments to Complete Kitchen. Ms. Burge failed to establish by a preponderance of the evidence that Mr. Segond incurred compensable damages. ORDER 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

----------------------- [1] 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. [2] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [3] Black’s Law Dictionary 1220 (8th ed. 1999). [4] 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).

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