ALJDEC decisions subject to certification as final

2015A-4294-ROC-rhg · Registrar of Contractors · 2016-09-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22, 2016 APPEARANCES: Eladio Peña, owner and qualifying party, appeared on behalf of Complainant Az Pavescapres, LLC. Pete Jorgli, employee, appeared on behalf of Respondent Pure Landscape Inc. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On November 6, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. 225867 for dual landscaping and irrigation systems to Complainant. Mr. Peña is Complainant’s qualifying party and only member. 2. On May 8, 2012, the Registrar issued License No. 278660 for dual landscaping and irrigation systems to Respondent. 3. On or about October 13, 2015, Complainant filed a complaint with the Registrar that alleged that Respondent had paid only $3,039.00 on a $4,894.00 contract to perform landscaping at a project located at 11914 S. 184th Drive, Goodyear, Arizona 85338 for a homeowner named Gorman (“the Gorman project”). 4. Respondent did not resolve the complaint and on January 28, 2016, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s contractor’s license. 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on April 14, 2016. 6. At the hearing, Complainant argued that it had issued Invoice No. 2009 in the amount of $4,119.00, Invoice No. 2010 in the amount of $3,340.00, and Invoice No. 2019 in the amount of $775.00. Complainant asserted that Respondent failed to pay $1,080.00 toward Invoice Nos. 2009 and 2010, and failed to pay Invoice No. 2019 in its entirety. Respondent argued that it had backcharged Complainant $1,080.00 on Invoice Nos. 2009 and 2010 for poor work and damages and did not pay Invoice No. 2019 because it did not enter into an agreement for the work to be done. 7. Following the hearing, the Administrative Law Judge issued a recommended decision in which she concluded that Complainant failed to establish that it was owed more than $750.00 for materials or services rendered in connection with the licensee’s operations. 8. In the recommended decision, the Administrative Law Judge found that “Complainant has not borne its burden to establish by a preponderance of the evidence that it is entitled to be paid the additional charges in the amount of $775.00 for the work described on Invoice No. 2019,” and that “Respondent has not borne its burden to establish by a preponderance of the evidence that it is entitled to deduct $1,080.00 or any other amount from amount that it would otherwise have owed Complainant.” 9. The Administrative Law Judge then went on to conclude that “[b]ecause $775.00 deducted from $1,080.00 is only $335.00, which is less than the $750.00 required for a violation of A.R.S. § 32-1154(A)(10), Complainant has not established that Respondent violated the only statute charged in the Registrar’s Citation for Alleged Violation of A.R.S. § 32- 1154(A)(10).” 10. The Registrar accepted the decision of the Administrative Law Judge and the complaint was dismissed. 11. Complainant then filed a request for rehearing in which it cited the Administrative Law Judge’s mathematical error in reaching her conclusion. The Registrar granted Complainant’s request for a rehearing noting that the request was granted “to permit the ALJ to recalculate Complainant’s damages, if any.” In granting the request for rehearing, the Registrar left undisturbed the Administrative Law Judge’s conclusions set forth above in Finding of Fact No. 8.

CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. A.R.S. § 32-1101 et seq. 2. Complainant bears the burden of proof and must establish cause to revoke, suspend, or otherwise discipline Respondent’s contractor’s license by a preponderance of the evidence. 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). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. A.A.C. R2-19- 119(B)(2). 3. “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). 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.” Black’s Law Dictionary 1220 (8th ed. 1999). 4. 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.” 5. Respondent did not bear its burden to establish by a preponderance of the evidence that it was entitled to deduct $1,080.00 or any other amount from amount that it would otherwise have owed Complainant as to Invoice Nos. 2009 and 2010. Therefore, Complainant established that Respondent failed to pay it $1,080.00 in violation of A.R.S. § 32-1154(A)(10). 6. Complainant did not bear its burden to establish by a preponderance of the evidence that it was entitled to be paid the additional charges in the amount of $775.00 for the work described on Invoice No. 2019. Therefore Complainant failed to establish a violation of A.R.S. § 32-1154(A)(10) based on a failure to pay Invoice 2019. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar suspend Respondent Pure Landscape Inc.’s License No. 278660 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $1,080.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,080.00 in certified funds, the Registrar may close the Complaint in Case No. 2015a- 4294. 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, September 11, 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