ALJDEC decisions subject to certification as final

2011A-6831-ROC · Registrar of Contractors · 2012-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 1, 2012, at 8:00 a.m. APPEARANCES: Restoration Green Team LLC (hereinafter “Complainant”) appeared through its authorized representative, Matthew Allen Beller. Premier Custom Coatings LLC (hereinafter “Premier”) appeared through its authorized representative, Thomas Nelson Kerr II. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Premier is the holder of License No. L-5.222059-C issued by the Registrar of Contractors. 2. Complainant performed surface preparation work on the concrete floor of a commercial garage for Premier. Complainant completed its concrete surface preparation work on or about September 19, 2011, and presented its invoice in the sum of $2,517.00 for the completed construction work to Premier. 3. When Premier failed to comply with Complainant’s repeated requests for payment, Complainant filed a formal Complaint against Premier with the Registrar of Contractors. 4. Matthew Allen Beller (hereinafter “Mr. Beller”) testified that the construction work was performed pursuant to an oral agreement that Complainant would perform shot blasting on the concrete floor for the sum of thirty cents per square foot. Mr. Beller stated that Complainant completed the agreed upon shot blasting preparation work on September 19, 2011.[1] 5. Mr. Beller testified that Premier accepted the surface preparation work performed by Complainant and then applied an epoxy coating over the garage floor. Mr. Beller stated that the owner of the commercial garage paid Premier in full for the completed construction work.[2] 6. Mr. Beller testified that the sum of $2,517.00 that Complainant claims as due and owing does not include any finance charges, interest charges, or attorney’s fees.[3] 7. Thomas Allen Beller (herein after “Mr. T. Beller”) testified that Complainant has made numerous attempts to collect the open invoice from Premier. Mr. T. Beller testified that he contacted Premier during mid- November 2011, and that Thomas Nelson Kerr II (hereinafter “Mr. Kerr”) stated that Premier was struggling for cash and would pay Complainant the sum of $2,517.00 as soon as expected funds were received.[4] 8. Mr. T. Beller testified that he contacted Premier repeatedly and Premier always agreed to pay the unpaid invoice when sufficient funds became available to Premier. Mr. T. Beller stated that in January 2012, Premier raised alleged workmanship issues for the first time.[5] 9. Mr. T. Beller testified that in every telephone conversation, Mr. Kerr stated that Premier had every intention of paying Complainant in full but that Premier was “strapped for cash.”[6] 10. Ferdinand T. Buys (hereinafter “Mr. Buys”) testified that he has an epoxy floor coating company and is experienced in utilizing shot blasting in concrete floor preparation. Mr. Buys acknowledged that he is not a shot blast contractor. Mr. Buys stated that he preferred to perform concrete preparation by “diamond-grinding” rather than shot blasting for “thin-mil” epoxy floor coating applications.[7] 11. Mr. Kerr testified that Complainant’s shot blasting left “ghost lines” on the concrete garage floor that required Premier to apply additional epoxy coating to cover the alleged “ghost lines.”[8] 12. Mr. Kerr testified that Premier filed a formal complaint (ROC Case No. 2012-945) against Complainant with the Registrar of Contractors regarding the alleged poor workmanship by Complainant. Mr. Kerr acknowledged that Premier’s Complaint against Complainant for alleged poor workmanship was dismissed by the Registrar of Contractors.[9] 13. The Registrar of Contractors dismissed ROC Case No. 2012-945 because Premier admitted that it had corrected Complainant’s alleged poor workmanship and as a result, A.R.S. § 32-1155(C) precluded the Registrar of Contractors from issuing a Citation and Complaint.[10] 14. The Order of Dismissal provides, in pertinent part, as follows: Note: Nothing in this Order shall preclude Premier Custom Coating, LLC from presenting evidence and testimony as to poor work performed by Restoration Green Team, LLC as a defense to the alleged non-payment in Case No. 2011-6831.

15. Mr. Kerr testified that Complainant completed its concrete floor preparation work in September 2011, and that Premier then applied epoxy floor coating over the concrete floor. Mr. Kerr acknowledged that Premier did not notify Complainant of the alleged poor workmanship on the concrete floor until after Premier had covered Complainant’s work.[11] 16. Mr. Kerr acknowledged that Premier did not notify Complainant of the alleged poor workmanship until Premier filed its workmanship complaint against Complainant with the Registrar of Contractors in February 2012. Mr. Kerr testified that Premier had agreed to pay Complainant for its completed construction work but was unable to do so due to lack of funds. Mr. Kerr stated that Premier intends to pay everything Premier owes if given sufficient time.[12] 17. Mr. Kerr testified that he knew that “over-lapping” was common with shot blasting and that he was aware of the possibility of “ghost lines” on the concrete surface. Mr. Kerr acknowledged that Premier accepted Complainant’s concrete preparation work and then covered it with an epoxy floor coating.[13] 18. Administrative notice is taken of Premier’s prior license record as reflected on the Registrar of Contractors’ public website on August 15, 2012. Such prior license record reflects that License No. L-5.222059-C of Premier was suspended by the Registrar of Contractors for non-renewal on August 1, 2012. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. 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 credible evidence of record supported findings that establish that Premier accepted Complainant’s concrete preparation work and applied an epoxy floor coating over Complainant’s work. The sum of $2,517.00 is the proper balance due and owing to Complainant from Premier. Notwithstanding repeated attempts and billings over a prolonged period of time, said balance remains unpaid. This Tribunal concludes that Premier violated the charged provision of A.R.S. § 32-1154(A)(11).[14] RECOMMENDed order In view of the foregoing, it is recommended that License No. L- 5.222059-C of Premier shall be revoked on the effective date of the Registrar of Contractors’ Order unless the Registrar of Contractors receives and accepts written proof that Premier has paid the sum of $2,517.00 to Complainant. It is further recommended that if Premier provides acceptable proof that Premier has paid the above described sum of money to Complainant in certified funds on or before the effective date of the Registrar’s Order then the aforementioned license revocation shall not take place and that this matter be closed. In the event of certification of this 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 the certification. Done this day, August 16, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 8/1/12 Hearing Record (hereinafter “H.R.’) at 17:23-17:34. [2] H.R. at 17:35-19:24. [3] H.R. at 27:30-28:05. [4] H.R. at 41:01-42:17. [5] H.R. at 42:47-44:03. [6] H.R. at 44:30-45:49. [7] H.R. at 51:45-1:08:38. [8] H.R. at 1:12:05-1:16:40. [9] H.R. at 1:29:05-1:34:41. [10]See Exhibit No. C-4 (4/23/12 Order of Dismissal) [11] H.R. at 1:27:00-1:29:15. [12] H.R. at 1:36:00-1:38:22. [13] H.R. at 1:38:30-1:44:30. [14] A.R.S. § 32-1154(A)(11) Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

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