ALJDEC decisions subject to certification as final

2016A-2279-ROC · Registrar of Contractors · 2016-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Andrade and Son Tile, Inc.,

COMPLAINANT,

-v-

Mellon Holdings Corporation

DBA: Chris Mellon Homes,

License No. 304414,

Back to Basics Corp

DBA: Chris Mellon and Company,

License No: 197061,

RESPONDENTS.

No. 2016A-2279-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 7, 2016

APPEARANCES: Andrade and Son Tile, Inc. (Complainant) was represented by its owner, Rick Andrade. Mellon Holdings Corporation dba Chris Mellon Homes and Back to Basics dba Chris Mellon and Company were represented by Chris Mellon, their member, representative and chief operating officer.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

Mellon Holdings Corporation dba Chris Mellon Homes is the holder of License No. 304414 issued by the Registrar of Contractors (Registrar).

Back to Basics Corp. dba Chris Mellon Company (Respondent) is the holder of License No. 197061 issued by the Registrar.

Complainant filed a Complaint against Mellon Holdings Corporation dba Chris Mellon Homes with the Registrar alleging that it had failed to pay Complainant $8,504.00 for work it had done at the Kummerle home. Mellon Holdings Corporation dba Chris Mellon Homes responded that it was not the entity that hired Complainant to do the work in question. Thereafter, the Complaint was amended to include Respondent.

Both parties stipulated that Complainant worked for Respondent, not Mellon Holdings Corporation dba Chris Mellon Homes.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent and Mellon Holdings Corporation dba Chris Mellon Homes with a possible violation of A.R.S. § 32-1154(A)(10).

At hearing, Respondent acknowledged that Complainant had done work for Respondent and that Complainant was owed $6,350.00. Respondent disputed the remainder of the amounts on the invoices because it claimed that it had to spend money correcting work done by Complainant and should not have to pay Complainant for correcting its own mistakes. Specifically, Chris Mellon indicated he deducted $530.00 Complainant charged Respondent to tear down and redo a tile wall, $229.00 to redo a walkway to a pond after Complainant did the work before conduit was laid for irrigation, $600.00 to replace a gutter, $350.00 for Respondent’s supervisor to inspect the new gutter and $395.00 to repair a damaged table.

Rick Andrade testified that he was willing to be reasonable and accept the $6,350.00 if Respondent paid it immediately. He indicated that if the matter required a written recommendation, he would accept the deductions for the damaged table and gutter, but dispute any deductions to pay Respondent to inspect the new gutter or for redoing the wall and walkway. Andrade stated that he recalled Respondent specifically telling him how to lay the tile and do the walkway and that Complainant deserved to be compensated for redoing the work.

At hearing, Respondent agreed on the record to pay Complainant $6,350.00 via certified check no later than October 14, 2016.

On October 16, 2016, Complainant notified the Tribunal that Respondent had not provided the check as agreed upon.

CONCLUSIONS OF LAW

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.

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.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.

The evidence did not establish that Mellon Holdings Corporation dba Chris Mellon Homes owes Complainant any money.

The evidence established however that Respondent owes Complainant $6,350.00. The parties disputed whether Complainant should have to pay the remaining amounts for work done on the walkway and wall. Complainant said the work needed to be redone due to Respondent errors while Respondent said Complainant’s original work in these areas was defective. Where, as here, the evidence is of equal weight Complainant has failed to meet its burden that it is owed these additional amounts. In the same vein, Respondent contends it had to pay its worker $350.00 to inspect a gutter Complainant damaged while Complainant suggests that amount is excessive. Once again, the evidence is of equal weight and thus, the Tribunal cannot say that it is more likely than not that Respondent owes Complainant this amount.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $6,350.00 for services rendered in connection with Respondent’s contracting business.

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 Complaint against Mellon Holdings Company, dba Chris Mellon Homes, License 304414, be dismissed.

Based on the foregoing, it is recommended that the Registrar suspend Back to Basics dba Chris Mellon Company’s, License No. 197061 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $6,350.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,350.00 in certified funds, the Registrar may close the Complaint in Case No. 2016-2279.

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, October 20, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors