ALJDEC decisions subject to certification as final

2016A-212-ROC · Registrar of Contractors · 2016-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2016, at 8:00 a.m. APPEARANCES: Sierra Coatings LLC (hereinafter “Complainant”) appeared through its qualifying party/member Osiris Ibarra Ramirez (hereinafter “Mr. Ramirez”). Cornejo Construction Inc., was represented by its attorney, Fidelis V. Garcia, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT 1. Complainant is the holder of License No. 261629 issued by the Arizona Registrar of Contractors (hereinafter “Registrar”). 2. Respondent is the holder of License No. 272296 issued by the Registrar. Respondent’s license was current on May 17, 2016. 3. On or about January 19, 2016, Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $6,900.00 for interior and exterior painting that the Complainant allegedly performed for Respondent at Eva’s original Fine Mexican Food at 7087 N. Sunland Gin Road, Eloy, Arizona (hereinafter “restaurant”). The Complaint lists the contract date as December 23, 2013, with the start of the painting on December 23, 2013. The Complaint states that all work was ceased or completed on October 8, 2014.[1] 4. Complainant’s written statement attached to the Complaint provides, in relevant part, as follows: I finished the interior painting work for Mr. Cornejo on January 06, 2014 for the job at Eva’s North Fine Mexican Food in Casa Grande, AZ for $7,400.00. On October 8, 2014, I finished the exterior painting of Eva’s North Fine Mexican food for $2,500.00. In December 2015, I received a payment from Mr. Cornejo of $3,000.00.

5. 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). 6. Mr. Ramirez testified that he performed the painting work on the restaurant pursuant to an oral contract that he had with Respondent’s qualifying party, Fernando M. Cornejo (hereinafter “Mr. Cornejo”). Mr. Ramirez stated that he and Mr. Cornejo had been partners at the time. Mr. Ramirez said that he performed all painting work in a professional and workmanlike manner. Mr. Ramirez said that he had delayed filing the complaint because Mr. Cornejo kept promising to pay him. Mr. Ramirez acknowledged that there were actually two painting projects that took place at the restaurant. Mr. Ramirez said that the first project was for the painting of the interior of the restaurant for the sum of $7,400.00. Mr. Ramirez said that the second project was for the painting the exterior of the restaurant for $2,500.00. Mr. Ramirez acknowledged that received $3,000.00 from Respondent on November 25, 2015. 7. Mr. Cornejo testified that Complainant’s contract was between the Complainant and his mother who he identified as the owner of the restaurant. Mr. Cornejo stated that his mother had declined to pay the Complainant because she was dissatisfied with Complainant’s workmanship and because the Complainant had failed to correct its workmanship despite her requests that the Complainant do so. Mr. Cornejo denied that he or the Respondent had any contract with the Complainant to paint his mother’s restaurant. 8. Mr. Cornejo testified that the Complainant owed him money for his participation in the parties’ partnership. Mr. Cornejo said that he paid the Complainant $3,000.00 for the exterior painting on his mother’s restaurant in November, 2015, to try and resolve the dispute between his mother and his former partner. 9. Mr. Cornejo’s testimony is found to be credible. 10. Respondent argued that the complaint was not timely filed because more than two years had passed since Complainant either finished or ceased work on the interior painting project before the complaint was filed. Respondent also argued that workmanship issues on the exterior painting excused Respondent or Mr. Cornejo’s mother from owing Complainant for any remaining balance. Respondent argued that Complainant had been paid more than the contract price for the exterior painting on the restaurant. 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. A.R.S. § 32-1155(A) provides that the Registrar may issue a citation to a licensee for the commission of an act that is a cause for suspension or revocation of a license upon the filing of a complaint when the act was committed “within two years before the date of filing the complaint.” 5. The evidence established that Complainant finished the interior painting work at the restaurant for Respondent or Respondent’s mother on January 06, 2014. Complainant did not file a complaint with the registrar until January 19, 2016. 6. Accordingly, Respondent’s alleged act of failing to pay Complainant for the interior painting work performed at the restaurant did not occur within two years before the date of filing the complaint. 7. The evidence established that Complainant finished the exterior painting at the restaurant for Respondent or Respondent’s mother on October 8, 2014. Complainant stated that his contract for the exterior painting on the restaurant was for the sum of $2,500.00. Complainant acknowledged that he received $3,000.00 from Respondent in November 2015. Mr. Cornejo credibly testified that he paid the Complainant $3,000.00 for the exterior painting on his mother’s restaurant in November, 2015, to try and resolve the dispute between his mother and his former partner. Accordingly, Complainant has been paid in full for its exterior painting work on the restaurant. 8. Therefore, Complainant failed to establish that Respondent’s license should be disciplined for a violation of 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 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, May 18, 2016. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Complaint in electronic file.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826