ALJDEC decisions subject to certification as final

2010A-1049886-ROC · Registrar of Contractors · 2011-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 22, 2011

APPEARANCES: Complainant was represented by its Qualifying Party Omar Quijano; Respondent was represented by Greg Balman.[1]

WITNESSES: Omar Quijano Greg Balman

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that it is owed $56,013.03 from Respondent for labor and materials Complainant provided as a subcontractor for Respondent. Respondent denies that it owes any money to Complainant. At the start of the hearing, it was determined that $28,000.00 of the amount claimed due and owing by Complainant is a claim for damages that Complainant claims were caused by Respondent. The Administrative Law Judge ruled that damages do not fall within the no-pay statute cited in the Citation and Complaint for this matter. Therefore, the hearing focused on the remainder of the amount claimed to be due and owing, an amount of $28,013.03 for work performed by Complainant. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with exhibits filed by Respondent marked as R-1 through R-11, which included as Exhibits R-7 and R-8 unconditional lien waivers signed by Complainant. Testimony was taken from the witnesses above. Based upon the record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent Pine Canyon Master Builders LLC is the holder of license B.259283-R, a general residential contractor license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general construction of residential structures or appurtenances, except for certain specialty contracting, such as electrical, plumbing, swimming pools, etc. The license is currently suspended by law for lack of Qualifying Party since November 2010. 2. Complainant is a subcontractor who performed rough carpentry and siding work for Respondent under a written proposal that was accepted by Respondent in late 2008. Respondent was building condominiums at that time. Complainant performed work on the condominiums and was paid by Respondent through August 2009. 3. Respondent submitted exhibits showing each payment made to Complainant for each purchase order and work order issued by Respondent, and unconditional waivers signed by Complainant for each purchase order and work order. Those waivers stated that Complainant had been paid in full on each purchase order and work order. Respondent’s evidence shows that Respondent paid Complainant for work on Building #1 in the total amount of $228,713.53 and for work on Building #14 in the total amount of $227,206.15. 4. Complainant did not submit any documents during the hearing. Complainant’s owner and representative, Omar Quijano, testified that he contracted with Respondent for work on six buildings at $203,800.00 per building. He confirmed that Complainant worked on only two buildings. He testified that the amount he is claiming is based on verbal change orders for the two buildings. He acknowledged that the written contract between the parties required written change orders.[2] 5. Upon inquiry, Mr. Quijano testified that Complainant has not billed or sent invoices to Respondent for the work that is the basis for this claim. 6. The evidence fails to show any amount that is due and owing to Complainant. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. Only one statutory provision is cited in the Citation and Complaint as a potential violation: the “no pay’ provision found in Arizona Revised Statutes (A.R.S.) § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 when due for materials or services provided in connection with construction activities when the licensee has the capacity to pay or when the licensee has been sufficiently paid for the project. The record does not support a conclusion that Respondent violated the no pay provision. 3. As found above, the evidence submitted does not show that any amount is due and owing to Complainant. 4. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-1049886 (formerly F10-0104) against Respondent Pine Canyon Master Builders LLC 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, March 10, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] During the hearing, some confusion arose as to Mr. Balman’s authority to represent Respondent. Based on a written statement from Lone Tree Investments, LLC (hereinafter “Lone Tree”), the Administrative Law Judge determined that Mr. Balman is a corporate officer of Lone Tree and that Lone Tree is the sole member of the Respondent LLC. Mr. Balman was authorized to represent Lone Tree, the sole member and representative for Respondent. [2] Exhibit R-9. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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