ALJDEC decisions subject to certification as final

2015A-1307-ROC · Registrar of Contractors · 2015-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2015 APPEARANCES: Vince Merlino, Owner, Qualifying Party, and Member, appeared on behalf of Complainant Vince Merlino Concrete Masonry LLC. Kevin Burbank, Owner and Qualifying Party, appeared on behalf of Respondent Burbank Construction Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Burbank Construction Inc. (Respondent) is the holder of License Nos. 260016 and 260015 issued by the Registrar of Contractors (Registrar). 2. Vince Merlino Concrete Masonry LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $12,250.00 for excavation, pouring of footings, stem walls, back fill, and compaction for CMU walls and floor and garage slabs that Complainant performed at 9224 North 14th Street, Phoenix, Arizona pursuant to a verbal contract with Respondent. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). 4. Mr. Merlino testified that he paid for the materials and labor for the project out of his own pocket. Mr. Merlino stated that Respondent made no payment toward the $12,250.00 owed on the project. Mr. Merlino also indicated that Respondent had never raised any workmanship issues with the work performed. 5. Mr. Burbank acknowledged that Respondent owed Complainant $12,250.00 for work performed on the job, but asserted that it was not paid in full for the project and therefore was unable to pay all the subcontractors. Mr. Burbank stated that the original project was $52,000.00 or $54,000.00, and with all change orders, the total project was around $75,000.00. Mr. Burbank alleged that the customer paid only $48,000.00 toward the project. Mr. Burbank stated that Respondent borrowed more than $20,000.00 on two lines of credit to complete the job and pay what it could to the subcontractors. Mr. Burbank testified that Respondent is now paying $2,500.00 per month toward those lines of credit. 6. Respondent did not provide any documentation establishing its inability to pay. 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)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, [f]ailure 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.

4. Respondent acknowledged that it owed Complainant $12,250.00 for work performed pursuant to a verbal contract. Therefore, 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 $12,250.00. 6. Respondent failed to establish by a preponderance of the evidence 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)(10) by failing to pay Complainant $12,250.00 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)(10), grounds exist to impose discipline against Respondent’s license RECOMMENDed order Based on the foregoing, it is recommended that the Registrar suspend Burbank Construction Inc.’s License Nos: 260016 and 260015 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $12,250.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $12,250.00 in certified funds, the Registrar may close the Complaint in Case No. 2015- 1307. 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, December 28, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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