ALJDEC decisions subject to certification as final

2022A-10974-RFA-LS-ROC · Registrar of Contractors · 2024-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Adams,

COMPLAINANT

McCurdy Construction LLC

License No. ROC 322920,

RESPONDENT.

No. 2022A-10974-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 3, 2024

APPEARANCES: Jennifer Adams (Complainant) appeared on her own behalf. Michael S. McCurdy represented McCurdy Construction LLC (Respondent.) Assistant Attorney General Charles Hover III represented the Arizona Registrar of Contractors (Registrar).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Exhibits 1 through 17. Respondent’s Exhibit 1.

FINDINGS OF FACT

On July 18, 2924, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on September 3, 2024.

The Notice of Hearing provided that the issue set for determination was, “the Registrar’s determination regarding [Complainant’s] Recovery Fund Claim.”

Complainant filed complaint number 2022A-10974 the Registrar alleging poor workmanship on the part of Respondent. The complaint was assigned to Registrar Investigator Albert Bernal who conducted an initial jobsite inspection. The Registrar issued a Directive to Respondent to make certain corrections by March 1, 2023:

Complete plumbing in the kitchen

Complete exterior paint

Complete electrical, plumbing trim

Install hardware floor

Complete trim plumbing in the bedroom

Complete ceiling A/C vents – lighting fixtures

Install roof tile

Crack on covered patio concrete slab

On March 14, 2023, Investigator Bernal conducted a compliance jobsite inspection and made the following findings:

Electricity was provided to the kitchen but there was no hot water

The water heater was purchased but no installed

The electrical box in the attic needs to be “locate, exposed, and connected in order to turn on electricity to the electrical panel.”

Tile roof was not installed

Incomplete countertop

Shower glass doors have not been installed

Floor covering not installed in the bedroom and loft areas

Down stairs bathroom counter top, back splash and faucets were not installed, bathroom upstairs backplash was not installed

Cracks in the patio concrete

Glass missing at entrance office wall

In the master bedroom bathtub downstairs, tile that was removed from around the window and around the window sill by the bathtub were not installed.

A citation was issued to Respondent. Respondent did not file a timely answer to the Citation.

On April 20, 2023, the Registrar issued a Final Administrative Decision and Order (Default) concluding that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22). The Registrar suspended Respondent’s license for four days.

On or about August 16, 2023, Complainant filed a Residential Recovery Fund claim (Claim) based on complaint number 2022A-10974. Complainant submitted itemized bids from several contractors to repair Respondent’s deficient work that totaled $29,173.41. See Exhibits 13 and 14. After considering the total amount of the contract, the amount owed under the contract, and the amount of the bids, the Registrar determined that Respondent’s actual damages were $18,944.93.

On or about May 9, 2024, the Registrar issued a Notice of Administrative Award (Notice), the Registrar notified Complainant that she would be awarded $18,944.93 from the Residential Recovery Fund.

Respondent timely requested a hearing regarding the Notice.

The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

At hearing, the Registrar presented the testimony of Gail Matthews, Legal Assistant for the Registrar. Complainant testified on her own behalf. Michael McCurdy testified on behalf of Respondent.

Mr. McCurdy did not dispute that Complainant was eligible for a payout from the recovery fund. Mr. McCurdy stated that Complainant was entitled to a payout from the recovery fund. Respondent disputed the amount of the payout. Mr. McCurdy contended that the check for $500.00 in December of 2020 was for another contract. The check provides that the purpose is renderings. Respondent also stated that the $500.00 check preceded the date of the contract in this case. Complainant responded that it was her understanding that the $500.00 check was going to be used for any upcoming contract and the renderings stated on the check was used for the renderings in the contract that is the subject of this case. Although Mr. McCurdy provided a December 2020 invoice for $500.00 that preceded the date of the 2021 contract, there was no written evidence of a separate contract for Complainant’s home. The invoice provided by Mr. McCurdy was for the same home listed in the 2021 contract that is the subject of the recovery fund claim.

Respondent contends that the tub shower glass listed on Bates 149 was not a part of the original contract; Respondent stated that he did not agree to put a shower glass in the upstairs bathroom, only in the downstairs bathroom. Complainant disputed that the contract did not include a shower glass in the upstairs bathroom. There was no evidence presented at hearing that the contract provided that a shower glass would only be provided in the downstairs bathroom.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01 provides:

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.

2. Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

“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.”

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. The award appears to properly remedy the workmanship violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.

/ / / /

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive an award from the Residential Contractors’ Recovery Fund in the amount of $18,944.93.

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.

-54864001

001

-137160-45720000Done this day, September 23, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jennifer Adams

[email redacted]

McCurdy Construction LLC

[email redacted]

Registrar of Contractors

[email redacted]

By: OAH Staff