ALJDEC decisions subject to certification as final

2012A-5761-ROC · Registrar of Contractors · 2013-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2013 APPEARANCES: Vincent Ryan Blauvelt appeared on behalf of A A Anchor Fence Inc. doing business as Associated Fence of Glendale. Clarence Goodlett appeared on behalf of J R A General Contracting LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. J R A General Contracting LLC (Respondent) is the holder of License No. B-1.217532-C issued by the Registrar of Contractors (Registrar). 2. A A Anchor Fence Inc. doing business as Associated Fence of Glendale (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $9,850.00 for a fence that Complainant had constructed at 4837 East McDowell Road, Phoenix pursuant to a contract with Respondent. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation and Complaint charging Respondent with a possible violation of A.R.S. § 32-1154(A)(11). Hearing Evidence 4. On August 13, 2012, Complainant sent an email to Clarence Goodlett, Respondent’s Qualifying Party, with a proposal attached. The proposal included an estimate of $9,500.00 to install 600 lineal feet of 6 foot chain link fencing and gates as indicated. The email read as follows: Clarence, Please find the attached pricing for the chain link fencing and gates at Sonoran Science School. The pricing does not include private locating which needs to be completed because of the parking lot lighting. I will add this for $350.00 or you can provide it if you know someone in the trade. Please let me know if you have any questions. We can start next Monday (8-20-12).

Exhibit 4.

5. On August 13, 2012, Mr. Goodlett replied to the email with, “[Y]es you can get the locator[.] I will let the school know the start date[.] [T]hanks for everything.” Exhibit 4. 6. On August 13, 2012, Complainant replied to Mr. Goodlett’s email with an updated proposal including an estimate of $9,850.00 and asked that Mr. Goodlett “sign and return the revised proposal.” The proposal included the following provision: ACCEPTANCE: This agreement when signed by the customer(s) and ASSOCIATED FENCE CO. becomes a contract between the two parties and is not subject to cancellation.

Exhibit 4. 7. On August 14, 2012, Complainant sent another email to Mr. Goodlett asking him to “[p]lease sign and return.” 8. On August 14, 2012, Mr. Goodlett signed the proposal and sent it back to Complainant via email. 9. Complainant proceeded to install the fence specified in the contract.

10. On August 27, 2012, Complainant presented Respondent with an invoice for the fence. The invoice included a charge of $9,850.00 for the fence and $640.25 for sales tax. Respondent was advised to “[c]omplete and return prime contractors cert to avoid the tax.” Exhibit 3. 11. Respondent did not make any payment to Complainant for the fence. 12. Respondent argued it did not contract with Complainant for the installation of the fence, but was attempting to coordinate contact between Complainant and the Sonoran Science School so the parties could enter into a contract apart from him. 13. Mr. Goodlett acknowledged that he signed the original proposal that was sent to him and forwarded it on to the Sonoran Science School with a note to indicate he believed the proposal to be a fair price for the work to be done. Mr. Goodlett denied signing the revised proposal identified as Exhibit 2. Mr. Goodlett testified that he had never heard of a proposal becoming a contract when it was signed by the parties. Mr. Goodlett indicated that had Respondent intended to contract with Complainant, Complainant would have been required to complete a standard subcontractor agreement and provide certain documents. 14. Mr. Goodlett admitted Respondent had a contract with Sonoran Science School for a different fence on the property for which Respondent was paid prior to Complainant’s involvement. However, Mr. Goodlett testified that Respondent had not been contracted to install the fence and had not been paid for the fence Complainant installed. Mr. Goodlett stated Respondent was unable to pay Complainant and could prove such by looking at his bank account, but Mr. Goodlett did not present any documentation related to Respondent’s inability to pay. 15. Mr. Goodlett also referenced in passing possible workmanship issues Sonoran Science School had with the fence, but he did not elaborate or present evidence to establish any workmanship issues. 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. A.R.S. § 32-1154(A)(11) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, [f]ailure by 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.

4. Despite Respondent’s argument that he did not sign the revised proposal and did not believe a signed proposal constituted a contract between the parties, Complainant established the existence of a contract and that it completed the work required by the contract in a professional and workmanlike manner. 5. The evidence established Respondent had not made any payment toward the invoiced total of $10,490.25. 6. Respondent failed to establish that it lacked the ability to pay Complainant for the work performed. 7. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(11) by failing to pay Complainant $10,490.25 for services rendered in connection with Respondent’s contracting business. 8. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(11), grounds exist to impose discipline against Respondent’s license RECOMMENDed order Based on the foregoing, it is recommended that the Registrar suspend J R A General Contracting LLC’s License No. B-1.217532-C issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $10,490.25 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $10,490.25 in certified funds, the Registrar may close the Complaint in Case No. 2012- 5761. 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, June 21, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826