ALJDEC decisions subject to certification as final

2011A-4066-ROC · Registrar of Contractors · 2012-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 2, 2012 APPEARANCES: Structural Drywall Designs, L.L.C. was represented by its authorized representative, Arturo Bustamante. Bel Aire Construction, L.L.C. was represented by its attorney, Denise H. Troy, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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 1. Bel Aire Construction, L.L.C. (“Respondent”) is the holder of License No. 240253, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. Structural Drywall Designs, L.L.C. (“Complainant”) is the holder of License Nos. 248716 and 267228 issued by the Registrar. 3. On July 13, 2011, Complainant filed a written Complaint with the Registrar alleging non-payment by Respondent for work performed by Complainant on a project located at 2994 Sidewheel Drive, Bullhead City, Arizona. The Registrar designated the Complaint as Case No. 2011-4066. 4. The Registrar issued a Citation and Complaint in Case No. 2011-4066 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (11). 5. The Registrar forwarded Case No. 2011-4066 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Complainant submitted two quotes to Respondent dated March 2, 2011, for drywall and painting work on the subject project. Respondent accepted Complainant’s proposals on March 4, 2011. The total contract price was $23,326.00. 7. On March 22, 2011, the parties agreed in writing that Respondent would directly pay Complainant’s supplier, ABC Supply, in the amount of $5,549.14, and that this amount would be deducted from the amount that otherwise would be owed to Complainant for its work on the project. 8. On March 22, 2011, ABC Supply executed an Unconditional Waiver and Release on Final Payment that acknowledged payment in full to ABC Supply by Respondent on the subject project. 9. On March 22, 2011, Complainant’s qualifying party and member, Arturo Bustamante, executed an Unconditional Waiver and Release on Progress Payment that acknowledged a progress payment from Respondent to Complainant. However, there is a dispute as to the amount paid. The document had the handwritten amount of $3,000.00 scratched out and the handwritten notation “*cash* $8,549.14 AB.” At hearing, Mr. Bustamante denied that he initialed the latter amount. There was conflicting testimony as to the amount actually paid by Respondent to Complainant. However, it seems that the additional $5,549.14 is the same amount paid to ABC Supply by Respondent. 10. Respondent paid Complainant the total amount of $8,000.00 by three checks for three draws. 11. By check dated May 2, 2011, Respondent paid the sum of $400.00 to Shirleen Rukas, the wife of one of Complainant’s subcontractors, for re-staining work on the subject project. This work was within Complainant’s original scope of work on the project. 12. By check dated June 2, 2011, Respondent paid the sum of $200.00 to Ms. Rukas for additional work performed by her husband for Complainant on the subject project. 13. On June 16, 2011, Complainant executed an Unconditional Waiver and Release on Progress Payments acknowledging a progress payment in the amount of $3,000.00 from Respondent. 14. By memoranda dated July 8, 2011, July 9, 2011, and July 12, 2011, Respondent advised Complainant that Respondent was withholding the final payment and charging Complainant the cost to clean or replace items affected by Complainant’s overspray of paint on the project. 15. By email dated July 12, 2011, Complainant informed Respondent that Complainant agreed that the balance owed to the subcontractor hired for cleaning the overspray from the cabinets in the subject project could be deducted from the amounts otherwise owed to Complainant.. 16. By memo dated July 13, 2011, Respondent advised that cleanup crews would be on the subject project that day. Respondent pointed out that if Complainant participated in the cleanup, then Complainant could reduce the amount of the back charges for the cleanup on the project. 17. By email dated July 13, 2011, Complainant informed Respondent that Complainant would not be performing cleanup the next day. 18. Respondent accepted an invoice dated August 1, 2011, from Epic Custom Kitchens, Inc. (“Epic”) for two workers to work twelve hours to clean up and refinish the cabinets at the project. Respondent paid Epic the sum of $800.00 for the remedial work on August 31, 2011. 19. On December 1, 2011, Respondent executed an Unconditional Waiver & Release Upon Final Payment acknowledging that the homeowners had paid Respondent in full for the project. 20. The credible evidence of record supports Respondent’s following payments on the project totaling $20,949.14: $14,000.00 to Complainant; $600.00 to Ms. Rukas’ husband; $800.00 to the subcontractor for cleaning the cabinets; and $5,549.14 to ABC Supply. The evidence of record does not support the balance of Respondent’s back charges. 21. Respondent owes Complainant the sum of $2,376.86 for the subject project. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Complainant bears the burden of proof and must establish Respondent’s statutory violation by a preponderance of the evidence. [[1]] Respondent bears the burden to establish affirmative defenses, such as valid back charges, by the same evidentiary standard. [[2]] 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (11), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent owes Complainant the sum of $2,376.86 for the subject project. RECOMMENDED ORDER Respondent’s License No. 240253 shall be suspended on the effective date of the Order entered in Case No. 2011-4066 until Respondent provides the Registrar with written proof that Respondent has paid Complainant the sum of $2,376.86 by certified check or cashier’s check, and the Registrar approves proof of such payment. If Respondent provides the Registrar with written proof that Respondent has paid Complainant the sum of $2,376.86 by certified check or cashier’s check, on or before the effective date of the Order entered in Case No. 2011-4066, and the Registrar approves proof of such payment, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2011-4066 shall be closed. 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, February 22, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [2] See A.A.C. R2-19-119(B)(2).

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