ALJDEC decisions subject to certification as final

2016A-1664-ROC · Registrar of Contractors · 2016-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Upgrade Plumbing LLC,

COMPLAINANT

-v-

D & D Framing LLC

DBA: Abraham Alvarez Framing,

License No. 238074,

RESPONDENT

No. 2016A-1664-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 19, 2016

APPEARANCES: Abraham Alvarez for Respondent; Daniel Castro for Complainant

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On August 30, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 19, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

Complainant Upgrade Plumbing LLC’s owner Daniel Castro appeared and testified for Complainant. Abraham Alvarez, one of Respondent’s owners appeared and testified for Respondent.

In early 2015, Mr. Alvarez telephoned Mr. Castro about performing plumbing work at a new house being built at 1941 San Pedro Street in San Luis Arizona.

Mr. Castro agreed to do the work for $4150.00, but the parties did not enter a written contract.

On May 16, 2016, Complainant filed with ROC a complaint against Respondent alleging that it had been paid only $3000.00 and that Respondent still owed it $1150.00.

On August 15, 2016, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

In an Answer dated August 24, 2016, Respondent took the position that the home in question was a personal construction project, not a business project, and that although Mr. Alvarez constructed the home, D & D Framing had no part in the matter.

In the Answer, Respondent also took the position that there was poor workmanship and that Complainant had not fully complied with the parties’ verbal contract.

Respondent has filed with ROC a complaint against Complainant alleging poor workmanship. ROC has started its investigation of that complaint, but that investigation was not complete at the time of the hearing.

At the hearing Mr. Alvarez reiterated Respondent’s position this was a personal project, and that the outstanding balance had not been paid because of poor workmanship and because Complainant did not comply with the terms if the agreement.

Mr. Castro testified that initially Respondent had not informed him that there were workmanship problems and that he had been denied access to make repairs once he learned that Respondent was dissatisfied. Mr. Castro disputed the claim that Complainant had not complied with the parties’ agreement.

Among the areas of disagreement are whether Complainant had agreed to install a garbage disposal and hardware required to make the bathroom handicapped-accessible. In support of his position, Mr. Castro pointed to the plans that do not show handicapped-accessible features. Mr. Alvarez acknowledged that those plans do not show this, but asserted that these were part of the contract nevertheless.

As of the hearing date, Complainant had been paid only $3000.00 for the project. Respondent acknowledges that Complainant’s receipt for that $3000.00 was made out to D & D.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

A preponderance of the evidence is:

The 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 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Ariz. Rev. Stat section 32-1154(A) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: .... 10. 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.

This matter represents a disagreement about the scope of an oral contract between the parties. Each party presented testimony regarding its understanding of the scope of work to be completed, but because there is no written agreement, there is insufficient evidence to conclude that Respondent violated Ariz. Rev. Stat section 32-1154(A)(10) as alleged.

ORDER

IT IS ORDERED that on the effective date of the final Order in this matter Case No. 2016-1664 is 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 is forty days after the date of that certification.

Done this day, October 26, 2016.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors