ALJDEC decisions subject to certification as final

07F-M1802-ROC · Registrar of Contractors · 2007-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2007 APPEARANCES: Complainant was represented by its owner Mr. Robert Cortez; Respondent was represented by authorized employee Mr. Charles Sharits. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The issue presented in this matter is whether Respondent Grizzle’s Flooring Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Turbo Tile (“Complainant”) is the holder of License No. 117865 issued by the Registrar of Contractors (“ROC”). Robert Cortez is Complainant’s owner and qualifying party. Grizzle’s Flooring Inc. (“Respondent”) is the holder of License No. 201212, a Class K-08 contracting license issued by ROC. Jeff Grizzle is Respondent’s president.

Respondent hired Complainant in to do tile work at Respondent’s store and at other locations. On March 12, 2007 Complainant filed Complaint No. M07-1802 against Respondent. Complainant alleged that Respondent owed Complainant $1,357.00 for work performed by Complainant. On July 20, 2007 ROC issued Citation and Complaint No. M07-1802 alleging that Respondent may have violated A.R.S. §§ 32-1154(A)(7) and (A)(11). ROC issued a Notice of Hearing on October 26, 2007 setting the matter for 1:30 p.m. November 28, 2007. Mr. Cortez appeared and testified for Complainant. Respondent’s authorized employee, Mr. Charles Sharits appeared and testified. Mr. Grizzle also testified. Mr. Cortez testified that he had been hired to install tile at a number of locations in Respondent’s store and to install tile at various locations (the homes of Respondent’s customers.) According to Mr. Cortez, the parties had a verbal contract in which Complainant was to be paid $100.00 per day for the work at the store, but that that work was to be completed as time allowed with Complainant to do the work at the homes of Respondent’s customers first. Mr. Cortez submitted a bill for 11 days work ($1,100.00) that Respondent refused to pay. Mr. Cortez also submitted a bill for $257.00 for work completed at the Notaro residence that Respondent refused to pay. Mr. Sharits testified that Respondent had paid for both of the jobs for which Complainant alleges he was not paid. Mr. Grizzle testified that Respondent would never agree to pay a daily rate because the standard in the industry is to pay by the square foot or square yard. Work at Respondent’s Store According to Mr. Sharits, based on instructions from Mr. Cortez, Respondent paid one of Complainant’s employees, known as Oscar, $900.00 for Complainant’s work at the store. According to Respondent, Oscar’s real name is Juan Carlos Aguilar Mejia. Mr. Cortez disputed that he had ever agreed to have Respondent pay Oscar. Mr. Sharits testified that Mr. Cortez told Mr. Sharits to pay Oscar during a cell phone conversation that he and Mr. Cortez had. But in Respondent’s Written Answer to Citation and Complaint, received by ROC on August 6, 2007, Respondent asserted that Mr. Cortez told Mr. Grizzle to pay Oscar directly. In Respondent’s Answer, Respondent stated that it had paid Oscar by check. At hearing, Respondent, in its opening statement, made reference to the check to Oscar as proof that it had paid Complainant. But in a letter from Respondent to ROC received by ROC on April 13, 2007, Respondent asserts that it paid Oscar by cash. The administrative record does show a record that indicates that Respondent paid Juan Carlos Aguilar Mejia $1,142.20 in November 2006 with a notation that $900.00 was for work at the Mesa Store. But Mr. Cortez provided unrebutted and credible testimony that Oscar had stopped working for Complainant and started working for Respondent, which was why Respondent had made payments to Oscar. The preponderance of evidence supports Mr. Cortez’s version of events because the record shows that Respondent has been inconsistent in with respect to why Respondent believes it was justified in paying Oscar for Complainant’s work, and because Respondent was inconsistent in whether it actually paid Oscar by cash or by check. Work at the Notaro Residence The administrative record shows that Complainant submitted two invoices to Respondent for work at the Notaro residence. One invoice was dated November 5, 2006 and was for $257.00. The second was dated November 8, 2006 and was for $3,456.50. Respondent paid Complainant by check for the second invoice (less a 10% hold back for insurance). According to Mr. Sharits, the two invoices are duplicative and Respondent has made full payment. According to Mr. Cortez, these invoices are for different work at the Notaro residence. These invoices do not clearly list what work was being billed for or when that work was completed. Consequently, there was insufficient evidence adduced to determine whether these two invoices are duplicative. CONCLUSIONS OF LAW Generally the party asserting a claim or right bears the burden of proof at an administrative hearing, but a party asserting an affirmative defense bears the burden of proof with respect to that defense. The standard of proof is that of the preponderance of the evidence. See A.A.C. R2-19-119. The preponderance of evidence shows that Respondent has not paid Complainant $1,100.00 for the work at Respondent’s store. As discussed above, Respondent asserts that by paying Oscar, Respondent relieved itself of any obligation to pay Complainant, but Respondent has provided inconsistent statements related to its purported payment to Oscar and Respondent is not deemed to be credible on this issue. Complainant has not met its burden of proof to show that the two invoices for the Notaro residence are for different services because those invoices do not completely describe what work was completed or when that work was completed. Respondent’s failure to pay Complainant the $1,100.00 for work at Respondent’s store is a wrongful act that has substantially injured Complainant, which is a violation of A.R.S. § 32-1154(A)(7). Respondent’s failure to pay Complainant the $1,100.00, despite Respondent’s capacity to pay, also represents a failure of Respondent to pay Complainant an amount in excess of $750.00 when due, which is a violation of A.R.S. § 32-1154(A)(11). Because Complainant has met the burden of proof to show that Respondent violated A.R.S. §§ 32-1154(A)(7) and (A)(11), discipline against Respondent’s license is warranted.

RECOMMENDED ORDER IT IS RECOMMENDED that beginning on the effective date of ROC’s Order in this matter Respondent’s Class K-08 License No. 201212 be suspended until ROC receives written proof that Respondent has paid Complainant $1,100.00. IT IS FURTHER RECOMMENDED that if Respondent makes the required payment before the effective date of this Order then no suspension shall occur and Citation M07-1802 and the Complaint on which it is based shall be 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 will be 40 days from the date of that certification. Done this day, December 4, 2007

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826