ALJDEC decisions subject to certification as final

2015A-4409-ROC · Registrar of Contractors · 2016-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 5, 2016 APPEARANCES: Jeffrey Shaughnessy, Owner, appeared on behalf of Complainant Shaughnessy Contracting Inc. Rural Jeffrey, Owner, appeared on behalf of Respondent Born Again Construction LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Born Again Construction LLC (Respondent) is the holder of License No. 248181, 248538, and 265178 issued by the Registrar of Contractors (Registrar). 2. On or about October 20, 2015, Shaughnessy Contracting Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $2,100.00 for roofing work done at a jobsite at 721 West Willetta, Phoenix, Arizona. 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. Shaughnessy testified that Respondent originally requested a roof deck, but when Respondent was informed a roof deck would cost between $9,200.00 and $9,500.00, Respondent opted for a flat roof. The contract for the flat roof provided a total cost of $4,500.00. Mr. Shaughnessy stated that Complainant performed the work required by the contract. On or about October 8, 2015, Complainant issued an invoice to Respondent for $4,200.00 for “Reroofing, as per the contract modified by Rural Jeffery” noting a credit of $2,100.00 for the deposit made on July 27, 2015. 5. Mr. Jeffery testified that Complainant had represented that the roof would work as an alternative to a walk deck. Mr. Jeffery stated that the roof as installed was wavy and not suitable for anyone to walk on it. Mr. Jeffery was inconsistent with his description of the work performed by Complainant. At one point, Mr. Jeffery stated that Complainant only put down the fiberglass base, but later stated that Complainant installed the entire roof. Mr. Jeffery indicated that Respondent installed a new layer of plywood over the roof Complainant put down and then installed a new roof on top of that. 6. Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due. 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. The evidence established that Complainant installed the roof as required by the contract. While Respondent was not satisfied by the smoothness of the roof as being suitable for a walk deck, that was not what Respondent contracted with Complainant to install. Respondent opted for a lower cost roof that did not result in a smooth finish. 5. The evidence established that Respondent owed a total of $2,100.00 for the balance due on the contract. 6. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed. 7. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $2,100.00 for services and materials rendered in connection with Respondent’s contracting business. 8. Based upon Respondent’s violation of the provisions of A.R.S. § 32- 1154(A)(10), grounds exist to impose discipline against Respondent’s license RECOMMENDed order Based on the foregoing, it is recommended that the Registrar suspend Born Again Construction LLC’s License Nos: 248181, 248538 and 265178 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $2,100.00 in certified funds. It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $2,100.00 in certified funds, the Registrar may close the Complaint in Case No. 2015- 4409. 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, April 25, 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