ALJDEC decisions subject to certification as final

2013A-717-ROC · Registrar of Contractors · 2013-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 26, 2013

APPEARANCES: Complainant was represented by attorney James Pak; Respondent was represented by President and Qualifying Party Clyde Rousseau.

WITNESSES: Wallace Tuttle, Estimator/Project Manager for Complainant Clyde Rousseau

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action seeking money he claims is owed by Respondent. The claim arises out of a written agreement between the parties in which Complainant performed electrical work as a subcontractor on a residential project built by Respondent. Respondent denies the claim. This tribunal entered the complaint file received from the Registrar of Contractors (“ROC”) into the record, along with Complainant’s Exhibits A through F and Respondent’s Exhibits 1 and 2. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding a violation. Respondent Conceded a Violation At Hearing By Failing To Support Its Defense With Substantive Evidence At hearing, Respondent initially took the position that none of the remaining amount of the contract between the parties was owed. Respondent agreed that it did not pay Complainant $3,251.70 of the contract price, and claimed that it was due to alleged poor workmanship and Complainant’s failure to perform as required. However, when Respondent submitted its documentation showing the costs it incurred due to Complainant’s alleged poor workmanship and failures (Exhibits 1 and 2, and Exhibit D), it amounted to only $945.54. This leaves more than $2,000.00 claimed by Complainant for which Respondent has no substantive evidence supporting its claim that it owes no more money to Complainant. Thus, by failing to provide evidence, Respondent essentially concedes a violation and the only issue left is how much restitution, if any, should be awarded. FINDINGS OF FACT 1. Respondent is the holder of license B.174824-R, a general residential contracting license issued by the ROC. That license authorizes Respondent to perform general contracting work on residential properties, except for specialty areas such as plumbing, electrical, and other work that requires a specialty license. The Qualifying Party on the license is Clyde Rousseau. 2. Complainant holds a specialty residential contracting license for electrical work. 3. In March 2012, Respondent hired Complainant to provide and install lighting systems per plans and specifications that were provided by Respondent for a house that Respondent was building. The written proposal that became the contract when signed by Respondent did not include design work for the systems. Several written change orders were also executed by the parties. 4. Respondent told Complainant the type of equipment to install[1] and Complainant procured that equipment[2] and installed it per plans and specifications provided by Respondent. Wally Tuttle testified that the lighting systems were functional after installation, but that the owners were not happy with the differing rates at which certain lights dimmed. What followed is the heart of the dispute between the parties. 5. It was determined that a “dimming module” could be installed that would correct the problem. Respondent wanted Complainant to troubleshoot and fix the issue with the dimming module as part of the contract price. Complainant refused, noting that the system was installed per specs and had been designed by others, who left that module out of the system. Complainant considered the installation of the dimming module to be additional work and wanted to submit a change order or be paid time and material to work further on the lighting.[3] The parties reached and impasse and Respondent refused to pay any further on the contract. 6. The parties agreed at hearing that the total contract price was $73,580.00. They also agreed that Complainant has been paid a total of $70,328.30. This leaves a difference of $3,251.70, which is what Complainant claims he is owed. 7. As noted above, only $945.54 of that $3,251.70 is contested with substantive evidence by Respondent. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden. 2. The Citation and Complaint in this case cites only the “no-pay” provision found in A.R.S. § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” when the licensee has the capacity to pay or when the licensee has been paid for the project. 3. The evidence shows that Respondent entered into an agreement for the work done by Complainant. Complainant has completed the work and has been paid less than the amount owed, and has shown that $3,251.70 remains due and payable. 4. Respondent’s defenses are rejected. Complainant’s interpretation of the contractual arrangement between the parties is correct. The additional work related to the dimming module is the responsibility of the designer, not Complainant. Complainant’s refusal to perform more work without a change order was reasonable. Respondent’s refusal to pay the remainder of the contract price was not. 5. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on November 13, 2013. That prior record shows that Respondent has held the license since June 2002 and has never been disciplined.[7] This is an excellent record. 6. Respondent should be given an opportunity to pay the remaining balance and if Respondent fails to do so, its license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.174824-R held by Respondent Rousseau Design Inc., be suspended on the effective date of the Registrar’s Order until the Registrar receives written proof of payment in certified funds to Complainant of the sum of $3,251.70, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent Rousseau Design Inc. provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2013-717 shall be closed.

In the event of certification of the 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 that certification.

Done this day, November 13, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibits A and B. [2] Exhibit C. [3] Exhibit E. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [7] Suspensions for lack of bond and lack of renewal are not disciplinary.

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