ALJDEC decisions subject to certification as final

2015A-2203-ROC · Registrar of Contractors · 2016-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 23, 2015 APPEARANCES: Lawrence and Mazin Zoma, owners of Custom Backyard Creations, LLC appeared on behalf of Complainant. Jaime Construction Inc. was represented by Abraim Jaime, its qualifying party and representative. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. Jaime Construction Inc. (Respondent) is the holder of License No. 172319 issued by the Registrar of Contractors (Registrar). 2. Custom Backyard Creations, LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay $1,100.00 stemming from an invoice dated March 26, 2015, for concrete work done for one of Respondent’s clients located on Washington Street. Attached to the Complaint was an unsigned invoice dated March 26, 2015, for $1,500.00, which was created after the work in question was complete. The parties agreed that Complainant had received $400.00 of the invoiced amount. 3. Complainants had a signed invoice for work on the Washington Street property totaling $7,425.00 which had been paid in full. The dispute between the parties arose after the owner of the Washington Street property, Tania Torres, expressed dissatisfaction with the condition of the concrete floor Complainant had grounded and sealed. As a consequence, Mazin Zoma, one of the Complainant’s owners, offered to provide free grinding and sealing of the floor on two occasions. Complainants maintained that the third time Mazin Zoma worked on the floor, Respondent agreed to pay him $1,500.00 for his additional work. Respondent denied agreeing to any additional payment for what it characterized as “corrective work.” Respondent said that the $400.00 additional dollars paid was due to the fact that it asked for additional sealant to be applied to the floor before Torres’ grand opening. 4. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10). 5. Mazin Zuma testified that a week after he had performed free work on the floor for Torres, Abraim Jaime informed him that that Torres wanted additional work done on the floor. Prior to that, Complainant understood that Torres was satisfied with the condition of the floor following the free work he had completed. Mazin Zoma noted Complainant had been paid in full under the parties’ original contract. 6. At a meeting with both Torres and Jaime, Mazin Zoma recalled being asked by Torres what the additional work would cost and informing her that he could do the work in question and would inform Jaime of the cost. Mazin Zoma said that he told Jaime the work in question would cost an additional $1,500.00 and Jaime orally agreed. Based on the parties’ prior working relationship, the work was performed without a signed invoice. 7. According to Mazin Zoma, Jaime paid $400.00 for the work as part of a larger check for work performed, but then stated he would have to get back to him about the remainder. He indicated that Jaimie never told him the work he had done constituted corrective work for which he would receive no payment. 8. Lawrence Zuma testified that he attempted numerous times to communicate with Jaime and was never told that the March 26, 2015 invoice would not be paid because it represented corrective work. He believed that if the work was truly meant to be corrective in nature, Respondent would have supplied a change order and not paid Complainant the full amount of the original contract. Lawrence Zoma suggested that Respondent needed to be taught a $1,100.00 lesson about how to communicate with subcontractors and properly document corrective work. 9. Abraim Jaime testified that he is the general manager of Respondent and that the parties had no agreement for additional charges. He characterized all the work that Mazin Zoma did on the floor after Torres expressed dissatisfaction as corrective work that was free of charge. He noted that his delay in responding to Complainant stemmed from reaching out to Torres to see if she would be amenable to pay the additional charges. According to Jaime, Torres refused to pay for what she viewed as corrective work and that is what he told Complainant. Jaime did pay Complainant $400.00 more because he specifically requested that more sealant be added to the floor in anticipation of Torres’ grand opening. 10. Email correspondence from Jaime to Lawrence Zoma on April 24, 2015, notes in pertinent part that: A check for $3,000.00 is here in my office so you will be paid in full for the stadium and partial of that additional amount [on the Washington Street job]. The owner is reluctant to pay for additional work that needed to be corrected due to the inadequacies of the original corrections. I will update you at a later date once I meet with the owner to close out the job.[1]

11. Another email from Jaime to Lawrence on April 27, 2014 confirms that Torres “originally [asked how much the additional work would cost] but then after careful consideration was confused as to why there is an additional charge for something [Complainant] did not correct properly the first time and I did not dispute that.”[2] 12. Torres did not testify, but some email correspondence from her dated June 30, 2015, is attached to Respondent’s answer to the Citation which reads: Lawrence, We are not under any obligation to fill out this form. You have called my office several times and are now sending emails stating that you won’t be “going away.” Stop calling my office. And stop sending emails to me or Alyssha. Contact Abe Jaime directly – he’s the general contractor on this job.

13. Also attached to the answer to the Citation is an email dated August 30, 2015, from Alyssha Vargas, who works with Torres, which states: This email is to notify [Respondent] of the poor work that was original[ly] done and unacceptable on our floor of our front lobby. [Owner] was not satisfied with the job and need it corrected immediately by the subcontractor who performed the job originally.

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 . . . 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. In the absence of a written agreement between the parties relative to the additional work performed after receiving full payment on the parties’ original contract, the Tribunal cannot determine by a preponderance of the evidence that such an agreement to pay an additional $1,500.00 existed. While Complainant is adamant that such an agreement existed, Respondent is equally convinced that no agreement was reached and that any work performed was already paid for under the parties’ original contract. Where, as here, the evidence is of equal weight, Complainant has failed to meet it burden of proof that Respondent violated A.R.S. § 32-1154(A)(10). RECOMMENDed order Complainant’s Complaint should 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, January 8, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Exhibit 6. [2] Id.

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