ALJDEC decisions subject to certification as final
2022A-08962-RFA-LS-ROC · Registrar of Contractors · 2024-02-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michael Curtiss,
COMPLAINANT
v.
Burr Kennedy Construction LLC,
License No. ROC 218171,
RESPONDENT
No. 2022A-08962-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 17, 2023, January 18, 2024, and January 19, 2024
APPEARANCES: Assistant Attorney General Mona Baskin represented the Arizona Registrar of Contractors (Registrar). Gordon Bueler, Esq. represented Complainant Michael Curtiss.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: The Registrar’s Exhibits 1-6. Complainant’s Exhibits 1-16.
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FINDINGS OF FACT
1. On September 5, 2023, the Registrar issued a Notice and Order of Recovery Fund Claim Denial (Denial) determining that Complainant had suffered no actual damages as a result of Respondent Burr Kennedy Construction, LLC’s violations.
2. On or about September 14, 2023, Complainant requested an appeal regarding the Denial.
3. A hearing was held on November 17, 2023 and January 18, 2024.
4. At hearing, the Registrar presented the testimony of Gail Matthews, Legal Assistant II with the Registrar. Complainant testified on behalf of himself and presented the testimony of Amy Curtiss.
5. On or about May 21, 2021, Complainant entered into a residential construction contract with Burr Kennedy Construction LLC (Respondent). The contract was for the construction of a single family home located at 27075 E Thomas Ln. Florence, AZ, for the amount of $306,397.
6. On or about May 21, 2020, Complainant filed a complaint with the Registrar alleging Respondent had performed poor work and abandonment of the project. The complaint was assigned to, and investigated by Investigator Jason Simpson.
7. On November 16, 2022, Investigator Simpson conducted a jobsite inspection. On November 18, 2022, Investigator Simpson issued a directive to Respondent to remedy the violations by appropriate means. After a compliance jobsite inspection, Investigator Simpson referred the matter to the legal department.
8. On January 27, 2023, the Registrar’s Legal Department (Legal) issued a citation to Respondent for possible violations of A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3) – R4-9-108(a), A.R.S. § 32-1154(A)(8), A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158 and A.R.S. § 32-1154(A)(22).
9. On January 14, 2021, Respondent’s license was suspended by Final Administrative Order.
10. On or about May 18, 2023, Complainant filed a claim for payment with the Residential Contractors’ Recovery Fund pursuant to A.R.S. § 32-1133.01.
11. Gail Mathews, reviewed all the documents in the file. In review, it was determined that Complainant has not sustained compensable “actual damages”, as part of the contract price unpaid exceeded the reasonable cost of repairing the contractor’s defective performance. While the Complainant does meet all eligibility requirements, Complainant is determined to not have accrued any actual damages. There was a balance owing of $150,386.43 and the bid accepted was $79,600.00, therefore there is no actual damages.
12. At hearing, Ms. Matthews explained that the potential award calculation was based on a bid submitted by Complainant with the claim for payment. The bid was based on the items listed in the Directive.
13. Ms. Curtiss testified that she submitted bids to the Registrar with her claim for payment that were not solely related to the Directive items, but to complete the project. However, Ms. Matthews testified that Ms. Curtiss did not submit bids to complete the project with her claim, but solely to repair the Directive items.
14. I do not find the testimony of Amy Curtiss to be credible.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction.
2. A.R.S. § 32-1132.01 provides:
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B. An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:
1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.
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3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”
4. After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainant’s actual damages. Furthermore, the award is based on the bid that was submitted to the Registrar with the claim or an award. The Tribunal finds that the Denial was appropriate based on the bid submitted to the Registrar with the claim for an award.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the appeal be dismissed and the Registrar’s Denial be affirmed.
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 40 days from the date of that certification.
Done this day, January 19, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
By: OAH Staff