ALJDEC decisions subject to certification as final

2015A-3010-ROC · Registrar of Contractors · 2016-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2016 APPEARANCES: Gary Roberts, the Qualifying Party and Vice President, appeared on behalf of Complainant Tucson Commercial Carpet Inc. Respondent Ventura Pacific Development Inc. was represented by Everett Butler. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Ventura Pacific Development Inc. (Respondent) is the holder of License No. 259314 issued by the Registrar of Contractors (Registrar). 2. On or about July 13, 2015, Tucson Commercial Carpet Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $6,000.00 for vinyl plank flooring and ceramic wall tile installed at La Mia Toscana restaurant. 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. Roberts testified that Complainant installed the vinyl plank flooring and ceramic wall time as required by the contract. Mr. Roberts stated that Complainant did not receive a punchlist as to any issues with the installation. Mr. Roberts indicated that Complainant sent invoices for six months before receiving any payment. Mr. Roberts testified that Complainant was notified of an issue with tile in the bathroom, which Complainant repaired. While Respondent raised an issue with some waviness in the vinyl flooring installation, Mr. Roberts stated that any waviness was within industry standards. Mr. Roberts also indicated that Respondent had never raised any workmanship issues with the work performed. Mr. Roberts acknowledged that Complainant’s last work on the project was on or about July 2, 2013. 5. Complainant also presented the testimony of Susan Hoblit, President and General Manager. Ms. Hoblit acknowledged that Complainant’s last work on the project was on July 3, 2013, as she indicated in the lien she completed. 6. Respondent argued that the complaint was not timely filed because more than two years had passed since Complainant finished work on the project before the complaint was filed. Respondent also presented an “Unconditional Waiver and Release on Progress Payment” (Waiver) signed by Complainant on or about February 9, 2015. The body of that document provides that “[t]he undersigned has been paid and has received a progress payment in the sum of THREE THOUSAND DOLLARS AND 00/100 ($3,000.00) for all labor, services, equipment or material furnished to the jobsite or to VENTURE-PACIFIC DEVELOPMENT INC, . . . on the job of LA MIA TOSCANA . . . .” Respondent argued that, by signing the Waiver, Complainant had no claim for further payment. Respondent also argued that workmanship issues excused Respondent from owing Complainant for any remaining balance. However, Respondent acknowledged that no complaint regarding workmanship was ever filed with the Registrar. 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. A.R.S. § 32-1155(A) provides that the Registrar may issue a citation to a licensee for the commission of an act that is a cause for suspension or revocation of a license upon the filing of a complaint when the act was committed “within two years before the date of filing the complaint.” 5. The evidence established that Complainant completed work on the project on July 2, 2013, or July 3, 2013, but did not file a complaint with the registrar until July 13, 2015. Accordingly, Respondent’s act of failing to pay Complainant for the work performed did not occur within two years before the date of filing the complaint. 6. Therefore, Complainant failed to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10). RECOMMENDed order Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Tucson Commercial Carpet, Inc. and close the Complaint in Case No. 2015-3010. 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 27, 2016.

/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