ALJDEC decisions subject to certification as final

2016A-2820-ROC · Registrar of Contractors · 2016-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Primo Tile and Stone LLC,

COMPLAINANT

-v-

Concepts In Construction LLC,

License No: 258515

RESPONDENT

No. 2016A-2820-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 20, 2016

APPEARANCES: Michael Trejo for Complainant; Paul Olson for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On September 1, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 20, 2016, at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and Complaint.

Complainant Primo Tile and Stone, LLC holds license number 280159 issued by ROC. Michael Trejo is Complainant’s owner.

Respondent Concepts in Construction, LLC holds license number 258515 issued by ROC. Paul Olson is Respondent’s owner.

On August 2, 2016, Complainant filed with ROC a complaint against Respondent in which it alleged that that the two parties had a verbal contract in the amount of $2240.00 and that Respondent had paid Complainant only $500.00.

On August 12, 2016, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Both parties were subcontractors on a job in Lake Havasu City, with Respondent performing concrete work and Complaint tile work.

The parties dispute some details, but it is not disputed that on June 20, 2016, Complainant informed Respondent that there were issues with the floor that would require repair before the tile could be laid.

It is also not disputed that at that time, Mr. Olson paid Complainant $500.00 to make repairs to the floor. The dispute relates to each party’s separate understanding as to whether that $500.00 was payment in full, and if not, whether Mr. Trejo was to contact Mr. Olson if the cost was going to be more than $500.00.

At the hearing, Mr. Trejo testified as to his understanding that Mr. Olson had authorized Complainant to do whatever it would take to repair the floor and that Mr. Olson knew that this was to be a time and materials job. According to Mr. Trejo it took two workers thirty-eight to forty-two hours each to complete the work, which required grinding and chipping, and that he had used thirty-three bags of thin set.

Mr. Olson testified that he had not authorized Complainant to do whatever it took, and that he was under the impression that Mr. Trejo would call if the repairs were going to be in excess of $500.00.

According to Mr. Olson, he could have had his own workers make all required repairs for a quarter of the $2240.00 Complainant asserts the job cost. He also testified that he agreed to allow Complainant to make the repairs rather than doing them himself because if he had done the repairs, Complainant would have been pulled off the job while the repairs were being made.

Each party submitted a notarized statement from Greg Michaud, who was the general contractor’s job superintendent. Mr. Michuad’s statements show his believe that Mr. Olson did say something to the effect that Mr. Trejo should do whatever it takes to make the job right, but also that Mr. Olson had told Mr. Trejo to let him know if the cost would be more than $500.00 because Respondent would do the work itself in that case.

The parties each had submitted into evidence other letters signed by people who purported to have knowledge of the conversation between Mr. Trejo and Mr. Olson. These letters give conflicting accounts about the issue in dispute.

None of the authors were present and subject to cross examination about their statements and the information upon which they based those statements. Consequently, these letters can be given little weight.

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.

Complainant has not shown that the parties had a valid “time and materials” contract or that Respondent owes Complainant more than $750.00.

The preponderance of the evidence does not show 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 the Citation in Case No. 2016-2820 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