ALJDEC decisions subject to certification as final

09F-2147-ROC · Registrar of Contractors · 2009-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2009 APPEARANCES: The Complainant represented himself. The Respondent represented himself. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainant is an unlicensed housepainter. 2. The Respondent is a licensed painting subcontractor. 3. In approximately September of 2008, the Complainant responded to an internet message placed by the Respondent. The message solicited painters. 4. The Complainant initially contacted the Respondent’s wife regarding the work to be performed. Subsequently, the Complainant spoke with the Respondent. 5. The parties entered a verbal contract whereby the Complainant would paint the interiors of residences located at 221st Lane and 250th Lane in Buckeye, Arizona. The homes had experienced significant damage and were being restored by general contractors with the Respondent a subcontractor. 6. According to the Complainant, the Respondent agreed to pay the Complainant $15.00 an hour plus $3.00 an hour for equipment, and $12.00 an hour to the Complainant’s son who would also be working on the jobs. In addition, the Complainant asserted he was to receive a $50.00 gas allowance for each job. According to the Respondent, the agreement was that the Complainant was to be paid $800.00 for each of the Buckeye jobs. 7. The Complainant testified he and his son spent 40 hours from September to October 1, 2008. painting the interior at 221st Lane and 32 hours from October 2, to October 5, 2008 painting at 250th Lane. The respective amounts claimed for these jobs are $1,250.00 and $1010.00. 8. According to the Complainant, in addition to the above referenced work, he painted for eight hours and his son painted for five hours at 8713 West Jefferson in Peoria. The amounts claimed are $144.00 and $60.00 respectively. 9. The Respondent testified that on October 7, 2008, he was informed by the general contractor performing restoration work at 221st Lane that numerous paint related items required completion or correction. Complained of matters included clean up of paint on the exterior of the home as a consequence of the Complainant cleaning his equipment. The Complainant denied responsibility but according to the Respondent, the complained of paint was the same color as the interior paint. The Respondent asserted there were numerous other items that were not properly completed by the Complainant and needed correction. These were ultimately corrected by the Respondent who claimed it took 52 person hours. The Respondent presented no evidence to support the claim that 52 hours of corrective work at $45.00 an hour, were required as a consequence of the Complainant’s failure to properly complete or correct his work. 10. The Complainant requested payment from the Respondent and the Respondent did not pay. 11. On October 14, 2008 the Complainant filed his Complaint with the Registrar of Contractors (ROC). The Complaint alleged the Respondent owed the Complainant $2000.00. 12. On October 18, 2008, the Complainant sent a bill to the Respondent in the amount of $2464.00. This included amounts claimed on behalf of the Complainant’s 21 year old son. 13. On December 3, 2008, the general contractor working at the 250th Lane home informed the Respondent that that there were problems with the interior paint at that site. According to the Respondent, the corrections took 28 person hours. The Respondent presented no competent evidence to support this claim. The Respondent testified he did not pay the Complainant before learning of the alleged problems because he (the Respondent) had not been paid on this job and was not paid until August of 2009. The Respondent is claiming a set off for the cost of his corrective work. 14. According to the Respondent’s testimony and his written answer to the Complaint, the Complainant was not an employee but “was hired as a subcontractor.” It is not disputed that the Complainant was not hired as an employee by the Respondent. 15. In short, the Complainant asserts he is owed $2464.00 and the Respondent claims his set off for corrective work far exceeds the amounts claimed by the Complainant. Conclusions of Law The Citation and Complaint allege violations of A.R.S. §32-1154(A)(7), a wrongful act resulting in substantial injury and (A)(11), failure to pay an amount in excess of $750.00 for material or services. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. A.R.S. §32-1121(A)(14) provides that a person need not be licensed if the aggregate contract price for the work to be performed on one project or undertaking is under $1,000.00.[1] A.R.S. §32-1151 makes it unlawful to contract without a license. 5. The Complainant cannot represent his son or claim amounts owed for work performed by his son. Based on the Complainant’s evidence, he is owed $770.00 for 221st Lane (40 hours at $18.00 an hour plus $50.00 for gas), $626.00 for 250th Lane (32 hours at $18.00 an hour and $50.00 for gas) and $144.00 for work at 8713 West Peoria. The total is $1,540.00 If the amount is taken in the aggregate, it exceeds the amount allowed for unlicensed contracting under A.R.S. §32-1121 and the Complainant would not be entitled to compensation in a civil action under A.R.S. §32-1153. However, the evidence shows the Complainant worked on three separate jobs at different times. That being the case, the Complainant’s claims are considered separate in which case only the 221st Lane job meets the $750.00 monetary requirement of (A)(11). Although the Respondent claims payment for the 221st and 250th Lane projects was to be $800.00 per job, the Complainant’s testimony is given greater weight. 6. The Respondent’s claim of a set off of $2,340.00 (52 hours at $45.00 an hour) on the 221st Lane job alone, is absolutely without merit. However, the evidence supports a conclusion that the Respondent did perform some work to complete or correct the Complainant’s work and that a set off of in excess of $20.00 on that project is accepted. This brings the amount owed to the Complainant to under $750.00 It is therefore concluded that no violation of A.R.S. §32-1154(A)(11) is proven for any of the projects claimed by the Complainant. 7. As to the 250th Lane project the Respondent claims a set off of $1,260.00 (28 hours at $45.00 an hour. Again, this amount is not supported by any competent evidence. 8. Although the Respondent’s claims of set off appear to be clearly excessive, given the evidence in this case, it is concluded that the parties have a legitimate monetary dispute with respect to the 221st and 250th Lane projects. Neither the Complainant nor the Respondent presented satisfactory evidence to establish any reasonably ascertainable amounts which may be due either party. In light of this conclusion, no violation of (A)(7) is proven as to those projects. This conclusion does not prevent the Complainant from brining an action in the appropriate civil forum if he so desires. 9. However, the Respondent presented no evidence that would constitute a defense for non payment for the work performed in Peoria. It is concluded the non payment of $144.00 constitutes an independent wrongful act and substantial injury within the meaning of the statute. Given this, a violation of (A)(7) is proven. Recommended Order It is recommended commencing the effective date of the Order issued in this matter that the Respondent’s Class C-34 license shall be suspended until the Respondent makes partial restitution and pays or tenders payment to the Complainant in the amount of One Hundred-Forty-Four and 00/100’s ($144.00) Dollars. The Order in this case is effective forty (40) days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings.

Done this day, September 9, 2009

______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

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