ALJDEC decisions subject to certification as final
2020A-00931-RFA-LS-ROC · Registrar of Contractors · 2021-11-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John Francis Brennan,
COMPLAINANT,
v.
Revolutionary Construction LLC
License No. ROC 320173,
RESPONDENT.
No. 2020A-00931-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 16, 2021
APPEARANCES: Complainant John Francis Brennan appeared on behalf of himself. Jason Clonts appeared on behalf of Respondent Revolutionary Construction, LLC. Assistant Attorney General Sarah A. Asta appeared on behalf of the Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Scottsdale Eat Homes cooperative consists of several units. See Exhibit 7.
2. Complainant John Francis Brennan owns a unit within Scottsdale East Homes cooperative. See Exhibit 7.
3. Respondent Revolutionary Construction, LLC (Revolutionary) entered into a construction contract with Scottsdale East Homes cooperative to repair its units.
4. Mr. Brennan and Revolutionary entered into a residential remodeling contract separate from Revolutionary’s contract with Scottsdale East Homes cooperative.
5. On or about September 18, 2019, Revolutionary started work on Mr. Brennan’s home.
6. In December of 2019, Revolutionary stopped work on Mr. Brennan’s home.
7. Mr. Brennan filed a complaint with the Arizona Registrar of Contractors (ROC) alleging poor work on the part of Revolutionary. The ROC issued a Directive to Revolutionary requiring that Revolutionary complete the project. The ROC determined that Revolutionary did not comply with the Directive and issued a Citation against Revolutionary. Revolutionary filed an answer to the Citation and the matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
8. On October 28, 2020, a hearing was held regarding Mr. Brennan’s complaint and the Citation. The Administrative Law Judge found that the amount of the contract between Mr. Brennan and Revolutionary was $12,110.50.
9. The Administrative Law Judge concluded that Revolutionary violated A.R.S. § 32- 1154(A)(3); Arizona Administrative Code (A.A.C.) R4-9-108, and 32-1154(A)(22). On December 4, 2020, the ROC issued an order adopting the Judge’s findings and conclusions.
10. On or about April 5, 2021, Mr. Brennan submitted a claim for a payout from the ROC’s recovery fund.
11. Mr. Brennan submitted a bid from Boylston Development in the amount of $9,160. See Exhibit 16. Mr. Brennan submitted a bid with the claim from Revest Contraction, LLC in the amount of $9,821.
12. Gayle Matthews has been a Legal Assistant II with the Arizona Registrar of Contractors for two years. Ms. Matthews reviewed Mr. Brennan’s claim and the bids submitted by Mr. Brennan. Ms. Matthews used the bid from Revest in her calculation of Mr. Brennan’s actual damages because it was the lower of the two bids. Mr. Brennan submitted a receipt from Lowe’s showing that he paid for tiles separately from the contract.
13. Ms. Matthews determined that Mr. Brennan did not incur actual damages because the amount left owing on the contract was greater than the lowest bid.
14. The Registrar notified Mr. Brennan that his claim for a payout from the recovery fund was denied because he had not incurred actual damages.
15. Mr. Brennan requested a hearing regarding the denial.
16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
17. A hearing was held on November 16, 2021.
18. At hearing, Mr. Brennan testified on behalf of himself. Jason Clonts testified on behalf of Revolutionary. Ms. Matthews testified regarding her review of the claim.
19. Mr. Brennan reported on the claim form that the amount of his verbal contract with Revolutionary was $2,335 and that he had not paid Revolutionary under the contract. Mr. Clonts stated that the amount of the contract was $2,619,94.
Mr. Brennan and Mr. Clonts agreed that the amount left owing on the verbal contract was $1,036.75. Mr. Brennan and Mr. Clonts also agreed that most of the line items listed on the bid from Boydston Development exceeded the scope of Revolutionary’s contract with Mr. Brennan. Mr. Brennan and Mr. Clonts agreed that the items listed on the bid that were within the scope of the contract were:
$1,950.00 Demo floor tile/wood floor downstairs. 515 sq. ft. total.
$2,160.00 Install aprox. 515 sq. ft. floor tile downstairs. Homeowner to supply tile, thinset, grout.
$500 Dumpster rental for demo debris.
However, Mr. Clonts and Mr. Brennan both agreed that the dumpster rental included other units and was not limited to Mr. Brennan’s unit. In addition, Mr. Clonts stated that the square footage amounts listed in the bid should be decreased to reflect only Mr. Brennan’s unit that consisted of about 197.5 square feet.
20. Although the Administrative Law Judge found that the amount of the contract was $12,110.50, Mr. Clonts admitted that he did not appeal the decision.
21. The receipt provided by Mr. Brennan from Lowe’s does not clarify whether the tile purchase was limited to the amount necessary to repair the tile for all of the units or for Mr. Brennan;s unit alone.
CONCLUSIONS OF LAW
Complainant bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
A preponderance of the evidence is “[e]vidence 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).
Ariz. Rev. Stat. section 32-1132(A) provides, in relevant part, as follows:
An 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.
4. The evidence presented at hearing shows that the ROC accepted the Administrative Law Judge’s finding that the amount of the contract was $12,110.50.
The ROC correctly determined that Complainant incurred no damages because the amount left owing on the contract exceeded the amount of the lowest bid submitted by Complainant. Moreover, the evidence presented at hearing also shows that Complainant submitted a bid with his claim that exceeded the scope of his contract with Respondent. The Administrative Law Judge concludes that the ROC correctly determined that Complainant did not incur actual damages.
5. Consequently, the Registrar appropriately denied Complainant’s Recovery Fund claim.
ORDER
IT IS ORDERED that John Francis Brennan’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.
Done this day, November 23, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors