ALJDEC decisions subject to certification as final

2012A-2828-ROC · Registrar of Contractors · 2012-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2012, at 1:00 p.m. APPEARANCES: J N C Custom Painting Inc (hereinafter “Complainant”) appeared through its qualifying party, Jesus Chaviz-Naranjo. Belmont Homes Inc (hereinafter “Belmont”) appeared through its attorney, Mark A. Hanson, Esq., Schern Richardson PLC. 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. Belmont is the holder of License No. B.153079-R issued by the Registrar of Contractors. 2. This is a residential matter where Complainant performed painting work as a painting subcontractor for Belmont on a residence identified as the Diamont Point House at Las Senoas, Mesa, Arizona (hereinafter “the Wang residence”). 3. There was no dispute that Belmont was operating as a licensed general contractor for the construction work that was performed at the Wang residence. 4. Complainant filed a formal Complaint against Belmont with the Registrar of Contractors alleging that Complainant had an oral and written construction agreement to perform painting on the Wang residence for the sum of $33,000.00. Complainant acknowledged that it had been paid “$20,000.00 or $21,000.00,” and alleged that Belmont owed Complainant $19,000.00 for its completed painting work on the Wang residence.[1] 5. Complainant’s qualifying party, Jesus Chaviz-Naranjo (hereinafter “Mr. Chaviz-Naranjo”), testified that Belmont gave Complainant a $10,000.00 check on November 2, 2010, and a check for $6,500.00 on June 13, 2012. Mr. Chaviz-Naranjo acknowledged that the homeowner paid Complainant $4,890.00 on June 10, 2011. Mr. Chaviz-Naranjo stated that three checks were the only funds that Complainant received for the Wang construction project. 6. Belmont’s qualifying party, Thomas Patric Fitzgerald (hereinafter after “Mr. Fitzgerald”), testified that Complainant submitted a written estimate on August 3, 2010, for performing the painting work on the Wang residence for the total sum of $35,000.00.[2] 7. Mr. Fitzgerald testified that Belmont paid Complainant the sum of $5,000.00 on August 17, 2010.[3] 8. Mr. Fitzgerald testified that Belmont paid Complainant the sum of $10,000.00 on November 2, 2010.[4] 9. Mr. Fitzgerald testified that Belmont and the homeowner were embroiled in a contractual dispute and that the homeowner paid subcontractors directly for several months. 10. Mr. Fitzgerald testified that the homeowner paid Complainant the sum of $12,000.00 on January 6, 2011.[5] 11. Mr. Fitzgerald testified that the homeowner paid Complainant the sum of $4,890.00 on June 10, 2011.[6] 12. Mr. Fitzgerald testified that Belmont paid Complainant $6,500.00 as final payment for the construction project on August 13, 2011.[7] 13. Mr. Fitzgerald testified that Belmont and the homeowner had paid Complainant the total sum of $38,390.00[8] for its painting work on the Wang residence. Mr. Fitzgerald stated that the extra $3,390.00 was for the painting of fences and wainscoting that were not included in the original painting estimate. Mr. Fitzgerald testified that Complainant had been paid in full for all painting work performed at the Wang residence. 14. Mr. Chaviz-Naranjo acknowledged that Complainant had received a total of $38,390.00 from the homeowner and Belmont. Mr. Chaviz-Naranjo testified that the November 2, 2010 check from Belmont to Complainant for $10,000.00 was applied to an allegedly past due account for Complainant’s painting work on the Liu residence. Mr. Chaviz-Naranjo stated that Belmont failed to pay Complainant completely for its work on the Liu residence. 15. Mr. Fitzgerald testified that the November 2, 2010 check for $10,000.00 was for painting work performed at the Wang residence. Mr. Fitzgerald stated that the Liu residence had been completed more than one year prior to the Wang residence and that Complainant had been fully paid for its work on the Liu residence. Mr. Fitzgerald’s testimony is found to be credible. 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. Complainant prepared a written estimate for the painting work on the Wang residence for the total sum of $35,000.00. The homeowner and Belmont have paid Complainant the total sum of $38,390.00 for its painting work on the Wang residence. Credible testimony and evidence established that Complainant has been fully paid for its painting work on the Wang residence. This Tribunal concludes that Complainant failed to meet its burden of proof to establish a violation by Belmont of the charged provision of A.R.S. § 32-1154(A)(11).[9] RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, this Citation, together with the Complaint that it is based upon, shall be dismissed. 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, October 26, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Complaint. [2] See Exhibit R-2 (JNC Custom Painting Inc Estimate #112). [3] See Exhibit R-3 (8/17/10 Check from Belmont to Complainant for $5,000.00). [4] See Exhibit R-4 (11/2/10 Check from Belmont to Complainant for $10,000.00). [5] See Exhibit R-5 (1/6/11 Check from homeowner to Complainant for $12,000.00). [6] See Exhibit No. R-6 (6/10/11 Check from homeowner to Complainant for $4,890.00). [7] See Exhibit No. R-7 (8/13/11 Check from Belmont to Complainant for $6,500.00). [8] Checks for $5,000.00, $10,000.00, $12,000.00, $4,890.00, and $6,500.00. [9] 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.

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