ALJDEC decisions subject to certification as final

2012A-2448-ROC · Registrar of Contractors · 2013-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2013, at 8:00 a.m. APPEARANCES: Terra Excavation LLC[1] (hereinafter “Complainant”) appeared through its Qualifying Party, Thomas Matthew Carr. Growers Market Inc (hereinafter “Growers”) failed to appear. 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. Growers is the holder of License No. C21R.152975-R for residential landscaping issued by the Registrar of Contractors. 2. This is a commercial construction project wherein Complainant performed grading, excavation, and installation work as a subcontractor for Growers at the Freeport McMoran Copper and Gold construction project in Morenci, Arizona (“the Morenci project”). 3. Growers failed to pay Complainant in full for its construction work and Complainant filed a formal Complaint against Growers with the Registrar of Contractors. 4. The parties were unable to resolve their dispute and a Citation and Complaint was issued charging Growers with possible violations of A.R.S. § 32-1154(A)(11) and A.R.S. § 32-1154(A)(17). 5. Complainant’s employee, Bill Carr (hereinafter “Mr. B. Carr”), testified that he was the person who actually supervised the construction work performed by Complainant at the Morenci project. Mr. B. Carr testified that Complainant provided Growers with written invoices for Complainant’s construction work performed at the commercial construction project on a daily basis. Mr. B. Carr stated that the invoices were true and correct. Mr. B. Carr testified that Grower’s owner and foreman were “never on the job.” Mr. B. Carr testified that a new playground slide was damaged during its installation. Mr. B. Carr stated that Complainant followed the manufacturer’s installation instructions. Mr. B. Carr testified that the manufacturer acknowledged that the installation instructions were deficient and replaced the damaged slide with a new slide without additional charge.[2] 6. Mr. B. Carr’s testimony is found to be credible. 7. Jeffrey Singleton (hereinafter “Mr. Singleton”) testified that he was formerly employed in an accounting capacity for Complainant. Mr. Singleton testified that Complainant had worked with Growers for a number of years. Mr. Singleton stated that Growers repeatedly failed to pay Complainant in a prompt manner. Mr. Singleton stated that he became concerned about the amount of money that was owed by Growers to Complainant for the Morenci project and contacted Growers. Mr. Singleton testified that Growers then prepared a written Settlement Agreement[3] that reduced Complainant’s monetary compensation from $57,863.13 to $50,000.00. Mr. Singleton stated that Complainant accepted and signed the Settlement Agreement prepared by Growers. Mr. Singleton testified that Growers then paid Complainant the first agreed-upon payment of $10,000.00. Mr. Singleton stated that Growers failed pay Complainant anything else. Mr. Singleton stated that Growers breached the Settlement Agreement and refused to pay Complainant for its completed construction work.[4] 8. Mr. Singleton’s testimony is found to be credible. 9. Complainant’s Qualifying Party, Thomas Matthew Carr (hereinafter “Mr. T. Carr”), testified that had a long history with Growers and that Growers repeatedly failed to pay Complainant in full for Complainant’s construction work. Mr. T. Carr stated that because Growers breached the Settlement Agreement, it was no longer binding on Complainant and that the principle amount owed to Complainant by Growers is the sum of $47,863.13. Mr. T. Carr testified that the principal sum of $47,863.13 did not include penalties or interest.[5] 10. Mr. T. Carr’s testimony is found to be credible. 11. Mr. B. Carr testified that he had worked with Growers for years and that he did not think that Growers would ever fail to pay Complainant such a large sum of money. Mr. B. Carr stated that in the past Growers would always reduce the amount owed by several hundred dollars and that Complainant was always willing to let the minor amounts “slide.” Mr. B. Carr testified that Growers had been paid by the owner for the Morenci project. Mr. B. Carr stated that Growers had failed to fully pay Complainant and that Growers had failed to pay other subcontractors that had performed construction work at the Morenci project.[6] 12. Administrative notice is taken that License No. C21R.152975-R of Growers is a residential contractor’s license. 13. Administrative notice is taken of Growers’ prior license record as reflected on the Registrar of Contractors’ public website on March 11, 2013. Such prior license record reflects that License No. C21R.152975-R of Growers is current. License No. C21R.152975-R of Growers was suspended for non-renewal from May 1, 2012, through July 9, 2012, and was suspended for non-renewal from May 1, 2004, through May 6, 2005, for non- renewal. 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. Growers failed to pay Complainant the principal sum of $47,863.17 for Complainant’s completed construction work on the commercial construction project at issue. Growers has been fully paid by the owner of the construction project for the completed construction work. This Tribunal concludes that Growers violated the charged provision of A.R.S. § 32- 1154(A)(11).[7] 4. License No. C21R.152975-R of Growers is a residential contractor’s license. The Freeport McMoran Copper and Gold construction project in Morenci, Arizona is a commercial construction project. This Tribunal concludes that Growers violated the charged provision of A.R.S. § 32- 1154(A)(17).[8] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. C21R.152975-R of Growers shall be revoked unless the Registrar of Contractors receives and accepts written proof that Growers has paid the principal sum of $47,863.17 in certified funds to Complainant. It is further recommended that if on or before the effective date of the final Order, Growers provides acceptable written proof and the Registrar accepts such proof that Growers has paid the principal sum of $47,863.17 in certified funds to Complainant, then the above provided License revocation shall not take place and, instead, License No. C21R.152975-R of Growers shall be placed on disciplinary probation for a period of ninety (90) days. 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, March 14, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] ROC License No. KB-2.231242-D. [2] 3/4/13 Hearing Record (hereinafter “H.R.”) at 4:40-13:28. [3] See Exhibit No. C-4 (Settlement Agreement). [4] H.R. at 13:46-17:08. [5] H.R. at 17:13-19:02. [6] H.R. at 19:12-21:30. [7] A.R.S. § 32-1154(A)(11) includes among the grounds for disciplinary action against a contractor’s license, 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. [8] A.R.S. § 32-1154(A)(17) includes among the grounds for disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee.

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