ALJDEC decisions subject to certification as final

2013A-121-ROC · Registrar of Contractors · 2013-08-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 31, 2013 APPEARANCES: Complainant Associated Building Services Inc appeared through Terry Murphy, its Qualifying Party. Respondent BA Contracting & Restoration of Arizona LLC appeared through Brian Brinkerhoff, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. BA Contracting & Restoration of Arizona LLC (Respondent) is the holder of License No. KB-2.275752-D issued by the Registrar of Contractors (Registrar). 2. Associated Building Services Inc (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $3,658.00 for carpet and vinyl tile that Complainant had installed at 3573 East Wildhorse Street, Gilbert, Arizona 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 September 18, 2012, Complainant provided Respondent with a proposal for the installation of carpet, pad, and vinyl tiles. 5. On September 19, 2012, a representative for Respondent signed the proposal indicating acceptance of the proposal and intent to enter into a contract with Complainant. The total contract price was $3,658.00. 6. Complainant performed the work indicated in the contract. 7. On October 11, 2012, Complainant presented Respondent with an invoice for the flooring installation. The invoice indicated a total payment due of $3,658.00. 8. Respondent did not make any payment to Complainant for the flooring installation. 9. Respondent acknowledged the work was completed and had no reason to believe Complainant did not complete the work. However, Respondent argued it should not be responsible for full payment because the employee who signed the proposal was not authorized to enter into contracts on behalf of Respondent. Mr. Brinkerhoff testified he was the only person authorized to enter into contracts on behalf of Respondent and he had not given the employee who signed the proposal any authority to do so. Mr. Brinkerhoff admitted that he “wasn’t aware” of what was occurring at the jobsite and that he had never been to the jobsite to see that the work was completed. 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. It is the responsibility of a licensee’s qualifying party to “adequately supervise the work performed by the licensee.” A.R.S. § 32-1127. 5. Despite Mr. Brinkerhoff’s argument that he did not authorize the employee to enter into a contract on behalf of Respondent, it was Mr. Brinkerhoff’s responsibility to supervise the work performed by Respondent. By Mr. Brinkerhoff’s own admission, he was not aware that the proposal had been accepted by Respondent’s employee and that the work had been completed as Mr. Brinkerhoff had never visited the jobsite. 6. Complainant established the existence of a contract and that it completed the work required by the contract in a professional and workmanlike manner. 7. The evidence established Respondent had not made any payment toward outstanding balance of $3,658.00. 8. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(11) by failing to pay Complainant $3,658.00 for services rendered in connection with Respondent’s contracting business. 9. 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 BA Contracting & Restoration of Arizona LLC’s License No. KB-2.275752-D issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $3,658.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,658.00 in certified funds, the Registrar may close the Complaint in Case No. 2013- 121. 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 20, 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