ALJDEC decisions subject to certification as final

09F-1271-ROC · Registrar of Contractors · 2009-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 19, 2009 APPEARANCES: Mark Sinkovich appeared on behalf of Complainant Petersen Dean, Inc., doing business as Petersendean Roofing and Solar Systems. Steve Tunney, Esq. represented Respondent Platinum Investments, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Platinum Investments, Inc. (“Platinum”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT Platinum is the holder of a Class B- license (No. 215904) issued by the Registrar of Contractors (“ROC”). Nicolette Valentine is Platinum’s President. On March 20, 2007, Complainant Petersen Dean, Inc., doing business as Petersendean Roofing and Solar Systems (“Petersendean”), contracted with Steve Danca of Arizona Builders for Petersendean to install a roof on the Valentine residence.[1] See Contract dated March 20, 2007, a copy of which is contained in the case file. The contract price was $55,625.00. Id. Petersendean performed the work it was contracted to perform. On May 24, 2007, Petersendean received a check in the amount of $20,000.00 from Nicolette Valentine and Cortney Amstutz, the owners of the home. The check was declined for non-sufficient funds. On June 11, 2007, the owners issued a replacement check to Petersendean. That check was also declined for non- sufficient funds. After Petersendean contacted the Maricopa County Attorney’s office, on July 18, 2007, the owners re-issued a check that cleared their account. However, Petersendean has not been paid the $35,625.00 contract balance. On March 5, 2008, Petersendean offered the homeowners the option of either paying the contract balance or to sign an escrow instruction that provides for the payment of the contract balance upon the sale of the home. See Letter dated March 5, 2008, a copy of which is contained in the case file. On March 7, 2008, Mr. Amstutz executed an Assignment of Proceeds with LandAmerica Transnation Title Insurance Company, irrevocably directing the disbursement of $35,625.00 to Petersendean from the proceeds of the sale of the home. See Copy of Assignment of Proceeds dated March 7, 2008, a copy of which is contained in the case file. On July 24, 2008, Petersendean filed a complaint against Platinum with the ROC, alleging that Platinum has failed to pay Petersendean for all of the roofing work Petersendean performed, in the total amount of $35,625.00. At hearing, Mark Sinkovich, Petersendean’s Director of Operations, testified that Petersendean performed the work, and Platinum owes the contract balance. Platinum’s attorney argued that Platinum was not a party to the contract, that the homeowners individually and personally paid the initial $20,000.00, and that the escrow instruction that Petersendean gave the homeowners the option of executing in lieu of immediate payment, remains in full force and effect. Unfortunately, the house remains on the market for sale. CONCLUSIONS OF LAW 1. In this proceeding, Petersendean bears the burden to prove, by a preponderance of the evidence, that Platinum is subject to discipline for violations of A.R.S. § 32-1154(A)(7) and/or (A)(11) as charged by the ROC in its March 5, 2009 Citation and Complaint. See Arizona Administrative Code R2-19-119. 2. 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). 3. The Administrative Law Judge concludes that Petersendean failed to meet its burden of proof as to both of the ROC charges. 4. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered . . . when he has the capacity to pay or, if he lacks the capacity to pay, when he has received sufficient monies as payment for the particular construction work or operation for which the services or materials were rendered or purchased.” The instant record demonstrates that Petersendean is owed in excess of $750.00. However, the evidence of record establishes that Petersendean contracted with Arizona Builders, not Platinum, and that the homeowners, in their individual capacity, paid the initial $20,000.00 to Petersendean, not Platinum. Further, Petersendean offered the homeowners the option of executing an Assignment of Proceeds in lieu of immediate payment. The homeowners exercised this option immediately. The evidence of record failed to establish that the Assignment of Proceeds is no longer valid or no longer in effect. The house simply has not been sold as of yet. Accordingly, based upon the evidence presented at hearing, and under all of the facts and circumstances presented herein, the Administrative Law Judge concludes that Platinum has not violated A.R.S. § 32-1154(A)(11). 5. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The evidence failed to establish that Platinum committed a wrongful act that substantially injured Petersendean. Therefore, the Administrative Law Judge concludes that Platinum did not violate A.R.S. § 32-1154(A)(7). 6. The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Platinum’s license. The ROC’s Citation in Case Number 09-1271, and the Complaint upon which it is based, should be dismissed.[2] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Platinum’s license, and that the Citation issued in Case Number 09-1271, together with the Complaint upon which it is based, 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 in this matter will be forty (40) days from the date of that certification. Done this day, October 26, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of October, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] Steve Danca was Platinum’s qualifying party until his resignation on August 27, 2009. Platinum is also named as the contractor for the project on the building permit that was originally issued on December 6, 2006, and re-issued on April 5, 2007. See building permit, a copy of which is contained in the case file, the contents of which administrative notice was taken. [2] Nothing herein should be construed as precluding either party from pursuing a claim in a civil court of competent jurisdiction.

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