ALJDEC - Licensing

2022A-08962-CHC-ROC · Registrar of Contractors · 2023-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Curtiss,

COMPLAINANT,

v.

Burr Kennedy Construction LLC,

License No. ROC 218171,

RESPONDENT.

No. 2022A-08962-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 12, 2023

APPEARANCES: Michael and Amy Curtiss (Complainant) appeared. Robert Stephan [Burr] Kennedy (Respondent), Qualifying Party, appeared. ROC Investigator Jason Simpson appeared.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

Respondent is the holder of License No. 218171, B General Residential Contractor, issued by the Arizona Registrar of Contractors (Registrar) in April of 2006.

On or about October 4, 2022, the Registrar received Complainant’s Licensed Complaint Form (Complaint) regarding the incomplete construction from a June 2021 contract for a single family home. The parties contracted for construction of a single family home according to plans, at the contract price of $306.397.00. Complainant noted that the foundation, framing, rough electrical, HVAC and plumbing had been done, but the framing had been done in March [2022] and roofing material had not been installed, resulting in damaged studs and the roofing OSB plywood. The Complaint indicated that the work had started in November 2021 and stopped in September 2022.

On November 16, 2022, Registrar’s Investigator Jason Simpson conducted a jobsite inspection and thereafter issued a Written Directive (Directive), dated November 28, 2022, directing that corrective action was necessary as to the noted four items. The Registrar set December 20, 2022 as the deadline for Respondent’s compliance with the Directive.

Following a compliance inspection on January 18, 2023, Investigator Simpson determined that none of the Directive items has been done.

The Registrar issued its Citation on January 27, 2023, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(8); and, Ariz. Rev. Stat. § 32-1154(A)(22).

Ariz. Rev. Stat. § 32-1154(A)(2)(b) involves departure from or disregard of building codes.

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1158 involves elements of the written contract.

Ariz. Rev. Stat. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the failure to complete a project “for the price stated in the contract, or in any modification of the contract.”

Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

The Registrar noticed the matter for hearing.

At hearing, Investigator Simpson testified regarding the inspection and the Directive which had gone uncompleted.

At hearing, Complainant’s position was that the work had not been completed by the Directive deadline of December 20, 2022. Complainant acknowledged that on December 21, 2022, he told Respondent to stay off the property because the Directive work was not completed. Further, Complainant had a concern that while Respondent was working on the Directive items (a) that Respondent was applying the roof material underlayment backwards and that the work being performed was of poor workmanship, and (b) that, if they let Respondent continue, Respondent was simply going to put sheetrock over the damaged and rotten wood/framing.

Further troubling to the ensuing circumstances was that since November of 2022, subcontractors were showing up at Complainant’s residence (his parents’ home), ostensibly demanding payment [apparently from the construction loan], and Complainant had obtained information showing that Respondent had received disbursements regarding the subcontractors’ work.

At hearing, Respondent’s position was that the siding had been done and they were working on the roof when Complainant told them not to come back. Respondent agreed that his license had been suspended, arguing that it was only for three days and that it was about his bond needing to be renewed. Respondent testified that he had been working on 2 projects at that same time and the other project’s homeowners took off without paying him the rest of the money owed to him. Respondent indicated that during COVID he’d had trouble getting out there to work on the project. Respondent indicated they would have redone the studs when doing the sheetrock and that the underlayment manufacturer had told him the way they were doing it did not matter.

Based on the hearing record, Respondent failed to complete all corrective action as determined was required by Investigator Simpson, pursuant to the Directive, by the December 20, 2022 date. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(22).

Based on the hearing record, Respondent failed to demonstrate the project was completed. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(8).

Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that Registrar’s record shows disciplinary suspension as of the date of this recommended decision.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Regarding the Complaint, Investigator Simpson found 4 Directive items remained uncorrected at time of the January 18, 2023 compliance inspection. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner, and also in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline. Additionally, there was insufficient evidence to demonstrate that Respondent’s actions were not in violation of the remaining cited statutory provisions. Therefore, the Administrative Law Judge concludes that Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(8).

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 218171 as follows: two week suspension on the effective date of the Registrar’s Order in this matter.

Recommended this date, May 4, 2023.

/s/ Kay Abramsohn

Administrative Law Judge

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the Administrative Law Judge. If the licensee accepts the Administrative Law Judge Decision, the Administrative Law Judge shall be certified as the final Administrative Law Judge Decision by the Office of Administrative Hearings.

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.

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Michael Curtiss

[email redacted]

Jason Simpson

[email redacted]

Burr Kennedy Construction LLC

[email redacted]

By: OAH Staff