ALJDEC decisions subject to certification as final

2015A-4169-ROC · Registrar of Contractors · 2016-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2016, at 1:00 p.m. APPEARANCES: Quick Drywall LLC (hereinafter “Complainant”) appeared through its qualifying party/member, Joel Johnson (hereinafter “Mr. Johnson”). South Coast Construction LLC dba Avalon Luxury Homes (hereinafter “Respondent’) appeared through its qualifying party/member Steven M. Todd (hereinafter “Mr. Todd”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. CR10.293765-D to Complainant on or about July 12, 2014. Complainant’s license was current as of May 9, 2016. The Registrar issued License No. KB-2.293688-D to Respondent on or about July 22, 2014. Respondent’s license was current as of May 9, 2016. Respondent’s License No. KB-2.293688-D was suspended until compliance from April 4, 2016 through April 15, 2016. On or about April 9, 2015, Complainant sent Respondent an invoice for the sum of $13,900.00 for drywall and texture work performed at 400 Meadows, Lake Havasu City, Arizona 86403 (hereinafter “Meadows”).[1] On or about April 23, 2015, Complainant sent Respondent an invoice for the sum of $13,900.00 for drywall and texture work performed at 3078 Maverick, Lake Havasu City, Arizona 85403 (hereinafter “Maverick”).[2] On or about October 1, 2015, Complainant filed a complaint with the Registrar against Respondent alleging that Respondent had failed to pay the sum of $27,800.00 to the Complainant for the performance of drywall and texture work performed by Complainant at the said two construction projects. The Registrar subsequently received Complainant’s request for hearing. On November 23, 2015, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).[3] After the Citation was issued the Registrar received Respondent’s written answer to the citation that denied any violation. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on May 9, 2016, at 1:00 p.m. Mr. Johnson testified on Complainant’s behalf. Mr. Todd testified on Respondent’s behalf. Hearing Evidence Mr. Johnson testified that Complainant was contacted by Respondent to perform drywall and texture work on the Maverick and Meadows construction projects. Mr. Johnson stated that he provided the Respondent with oral bids for the two construction projects and that he completed both construction projects in April 2015. Mr. Johnson denied that there were any workmanship deficiencies for the two construction projects. Mr. Johnson acknowledged that there were no written contracts for the two construction projects. Mr. Johnson testified that the invoices were for more than the oral bids submitted to Respondent because the general contractor for the construction project, which he identified as “Magic Homes”, requested a change from a “knockdown” finish to a hand-textured “Santa Fe” finish which required more labor and materials.[4] Mr. Johnson testified that he understood that Respondent and Magic Homes were partners for the two construction projects. Mr. Johnson said that Complainant was not asked to remove construction debris from the construction jobsites and that Respondent did not provide the Complainant with a punch-list for the construction projects. Mr. Johnson said that Complainant had completed the two construction projects in a workmanlike manner and that Respondent owed the Complainant the total sum of $27,800.00 for the two completed construction projects. Mr. Todd testified that Respondent was not the general contractor for the two construction projects and that there was no partnership relationship between the Respondent and the general contractor Magic homes. Mr. Todd stated that Respondent was only the drywall subcontractor for the two construction projects. Mr. Todd said that when he spoke with Mr. Johnson regarding drywall and texture work on the two construction projects it was for “piece-work” on the two construction projects by the Complainant. Mr. Todd stated that there was no contract or agreed-upon-amount for the performance of the construction work on the two construction projects. Mr. Todd said that the Respondent did not ask for or authorize any change orders for the two construction projects.[5] Mr. Todd’s testimony is found to be credible. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[6] 2. Complainant bears the burden of proof to establish statutory cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence.[7] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[8] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[10] 4. Mr. Todd credibly testified that Respondent was not the general contractor for the two construction projects and that there was no partnership relationship between the Respondent and the general contractor Magic homes. Mr. Todd stated that Respondent was only the drywall subcontractor for the two construction projects. Mr. Todd said that when he spoke with Mr. Johnson regarding work on the two construction projects it was for “piece- work” on the two construction projects by the Complainant. Mr. Todd stated that there was no contract or agreed-upon-amount for the performance of the construction work on the two construction projects. Mr. Todd said that the Respondent did not ask for or authorize any change orders for the two construction projects. Therefore, Complainant has not established by a preponderance of the evidence that Respondent owes Complainant any money for the job or that cause exists to discipline Respondent’s license under A.R.S. § 32- 1154(A)(10). RECOMMENDED ORDER Based on the foregoing, it is recommended that this matter be dismissed. 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 five days from the date of that certification. Done this day, May 12, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Electronic File. [2] See Electronic File. [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] Magic Homes ROC License No. 229291 voluntarily canceled on 6/14/13. Magic Homes LLC ROC License No. 285586 revoked on 11/3/15. [5] A review of the Arizona Registrar of Contractors’ public license records and the Arizona Corporation Commission public records on May 11, 2016, did not indicate any relationship between Mr. Todd and Magic Homes or Magic Homes LLC. [6] See 32-1101 et seq. [7] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] See A.A.C. R2-19-119(B)(1). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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