ALJDEC decisions subject to certification as final

2015A-3886-ROC · Registrar of Contractors · 2016-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2016, at 1:00 p.m. APPEARANCES: Robert D. Perez (hereinafter “Complainant” or “Mr. Perez”) appeared on his own behalf. Baldwin Stucco Inc., (hereinafter “Respondent”) appeared through its qualifying party, Merlin c. Baldwin (hereinafter “Mr. Baldwin”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated A.R.S. § 32-1154(A)(10) as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No. CR10.230626.D and License No. CR36.213395.D issued by the Arizona Registrar of Contractors (hereinafter “Registrar”). Both licenses were suspended until compliance on March 24, 2015, and are currently still suspended as of February 9, 2016. On or about September 11, 2015, Complainant filed a written complaint with the Registrar against the Respondent. Complainant alleged that Respondent had failed to pay Complainant for drywall piece work that Complainant had performed for the Respondent pursuant to written and oral agreements. Complainant said that Respondent had paid Complainant $3,000.00 out of the $6,300.00 that was allegedly due under the parties’ written and oral agreements for drywall taping and texturing on three separate projects. Complainant alleged that the Respondent had issued a partial payment after subtracting the cost of damages from the amount owed to Complainant. Respondent then notified Complainant of work that needed to be corrected and cancelled the partial payment. In response the Complaint the Respondent asserted that the Complainant texted on July 14, 2015, that he needed $1,500.00 for the “church” job. Respondent acknowledged that he agreed to pay Complainant $1,500.00 for the installation of the drywall work in the church. Respondent alleged that the other two construction projects that Complainant performed drywall work on were two identical residences located in Safford, Arizona. Respondent alleged that Complainant agreed to tape the houses for 17.5 cents per square foot. Respondent said that that the agreed upon price, at 17.5 cents per square foot, was $1,890.00 for each residence. Respondent asserted that total amount that would have been due to the Complainant was the sum of $5,280.00 for the completion of the church project and the two residences. Respondent said that it had paid Complainant $3,000.00 leaving a balance of $2,280.00. Respondent asserted that Respondent had back charges against the Complainant totaling $640.00 leaving a balance of $1,640.00 due to the Complainant. Respondent said that Respondent added $100.00 for the cost of materials that Complainant alleged that he had purchased for the projects and that on or about September 18, 2015, Respondent paid the Complainant a final payment of $1,740.00. On May 13, 2015, the Registrar issued a Citation against Respondent for an alleged Violation of A.R.S. § 32-1154(A)(10).[1] Testimony Mr. Perez testified that he originally thought he was going to be working as an employee of the Respondent rather than on a piece work basis. Mr. Perez stated that the parties agreed that the Complainant was to receive 17.5 cents per square foot for taping and an additional 8 cents per square foot for texturing when the construction work started. Mr. Perez said that the amount per square foot for taping was then increased to 20 cents per square foot. Mr. Perez asserted that the total amount due of the three construction projects was the sum of $6,300.00. Mr. Perez acknowledged that he had had previously received $3,000.00 from Respondent and that he received a check from Respondent in the sum of $1,740.00 on or about September 18, 2015. Mr. Perez asserted that Respondent’s claim for offsets were without merit and that the Respondent still owed the Complainant the sum of $1,560.00. Mr. Baldwin testified that total amount that would have been due to the Complainant was the total sum of $5,280.00 for the completion of drywall work on the church project and the two residences. Mr. Baldwin stated that Respondent had paid Complainant $3,000.00 leaving a balance of $2,280.00. Mr. Baldwin asserted that Respondent had back charges against the Complainant totaling $640.00 leaving a balance of $1,640.00 due to the Complainant. Mr. Baldwin said that Respondent added $100.00 for the cost of materials that Complainant alleged that he had purchased for the projects and on or about September 18, 2015 paid the Complainant a final payment of $1,740.00. Mr. Baldwin testified that the Respondent was entitled to back charges of $340.00 for lost discount, $300.00 for the cost of correcting Complainant’s drywall work after paint, and the sum of $200.00 for the loss of his personal time. Mr. Baldwin said that Respondent only deducted the back charges for the cost of repair and the lost discount when Respondent paid Complainant the sum of $1,740.00 on or about September 18, 2015. Mr. Baldwin’s testimony is found to be credible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] 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.[3] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[4] The preponderance of the evidence is insufficient and fails to support a finding that the Respondent has failed to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the Respondent's operations as a contractor. Mr. Baldwin credibly testified that total that would have been due to the Complainant was the total sum of $5,280.00 for the completion of drywall work on the church project and the two residences. There was no dispute that Respondent had paid Complainant $3,000.00 which leaves a balance of $2,280.00. Mr. Baldwin credibly testified that Respondent was entitled to back charges of $340.00 for lost discount, $300.00 for the cost of correcting Complainant’s drywall work after paint leaving a balance of $1,640.00 due to the Complainant. There was no dispute that on or about September 18, 2015, Respondent paid the Complainant a payment of $1,740.00. This Tribunal concludes that the preponderance of the evidence is insufficient and fails to support a finding that Respondent has violated the charged provision of A.R.S. § 32-1154(A)(10). RECOMMENDed order In view of the foregoing, it is recommended that this matter 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 five days from the date of the certification

Done this day, February 9, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(10) provides that the holder of a license or any person listed on a license pursuant to this chapter shall not commit the following act or omission:

Failure 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.

[2] A.R.S. § 32-1154(A). [3] A.A.C. R2-19-119. [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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