ALJDEC decisions subject to certification as final

2016A-3859-ROC · Registrar of Contractors · 2017-04-21

N THE OFFICE OF ADMINISTRATIVE HEARINGS

Sonoran Peak Construction and Roofing LLC,

COMPLAINANT,

v.

Amy Jo's Home Improvement Pros LLC,

License No: 302786,

RESPONDENT.

No. 2016A-3859-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 10, 2017 and April 20, 2017

APPEARANCES: Barry Cohen, member and qualifying party of Sonoran Peak Construction and Roofing, LLC appeared on behalf of Complainant. Amy Jo’s Home Improvement Pros, LLC was represented by Amy Munier, its qualifying party and representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

Amy Jo’s Home Improvement Pros, LLC (Respondent) is the holder of License No. 302786 issued by the Registrar of Contractors (Registrar).

Sonoran Peak Construction and Roofing, LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay the full amount of an invoice it submitted on September 22, 2016 The invoice stemmed from three agreements between the parties concerning work to be done on an apartment complex. The first agreement dated July 7, 2016 called for Complainant to replace 211 windows for $23,500.00. The second agreement dated July 14, 2016 involved Complainant performing stucco work between the windows for $18,100.00. The third agreement dated July 19, 2016 concerned the moving of doors and bricks for $1,000.00. Complainant also included an unsigned agreement dated August 11, 2016 concerning the removal of vermiculite for $2,850.00.

The parties agreed that the window replacement was not in dispute. The areas of disagreement center around whether Complainant completed the stucco work as specified for 64 windows and whether Complainant should be paid for its vermiculite removal. Complainant contends Respondent owes it $13,550.41 work on these issues. The total invoice was for $45,890.03 and Respondent paid it $32,339.62.

Respondent disputes that Complainant completed any of the stucco work on the 64 windows contemplated on the townhomes in the apartment complex. Respondent contends that Complainant performed stucco work on some lesser number of windows in the quad buildings of the apartment for no charge to curry favor from Respondent and had not yet started stucco work on the townhomes which consisted of the 64 windows to be stuccoed. Respondent maintained that it did not sign the proposal for vermiculite removal and that it should not have to pay for Complainant’s subpar and messy removal, which necessitated clean-up by Respondent.

Complainant disputed that it ever offered to perform stucco work for free and noted that the language of the July 14, 2016 stucco proposal did not reference wood frame windows. It contended that if it did not stucco between all 64 windows, it should still be paid for the work Complainant completed. Regarding the vermiculite, Complainant maintained that it had cleaned up as best as it could and should be paid for the removal.

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

Barry Cohen testified that Complainant had been looking for work and made proposals to Respondent, three of which were signed by Respondent. Cohen indicated that Complainant had completed its work, including the vermiculite removal, and had not been paid for all work done. He acknowledged that the final invoice contained some discrepancies from the original proposal because the number of windows and work actually done may have varied somewhat. He said the final invoice reflected those variations.

Cohen denied that the July 14, 2016 proposal called for stucco between the wood frame windows in the townhomes. He pointed out the wording of the proposal signed by Respondent provides as follows:

Restore stucco between windows on main buildings X64. Prepare exterior block for stucco coaling, Apply scratch coat and match existing stucco or like design. Prep walls and windows x4 on building across reet. install lath. Apply stucco to match exterior. $13,500.00

(Emphasis added). Cohen noted that the building to be stuccoed is expressly noted to be exterior block, not wood.

Amy Munier testified that she did not notice that the reference to a block wall was incorrect when she signed the proposal on behalf of Respondent. She noted that she had always paid Complainant for work done and had done so earlier than necessary. She maintained that she had not paid for the stucco work because it had not been done yet and had not paid for the vermiculite removal because Complainant had left a big mess.

At the further hearing Munier and her witness, Barry Walling of BG Builders, LLC which subcontracted the work in question to Respondent, testified that the stucco work done by Complainant amounted to 960 square feet of stucco. They said that buildings 1 and 3 which Complainant deducted from the amount due for its stucco amounted to 1600 square feet. Respondent contended it made no sense that it would pay $11,000.00 to stucco 960 square feet and $2500.00 to stucco 1,600 square feet. Respondent indicated this proved Respondent had contracted to stucco between 64 windows in the townhomes, but had not done so.

At the first hearing, Chase Matthew Brown testified that he was Cohen’s stepson and had overseen the work for Respondent. He said that Complainant had competed stucco work between all the windows on the quad buildings but was unsure how many windows had been done. He acknowledged being told by Munier “to get it done, don’t make a mess” with regard to the vermiculite removal. He said that Complainant had cleaned up as best it could.

At the further hearing Cohen acknowledged that Complainant had only stuccoed 960 square feet or 37.5 percent of the area between the windows in the quad as such he amended Complainant’s request for payment for stucco work and sought $5,062.50. He continued to seek $2,850.00 for the vermiculite clean-up for a total of $7,912.50. He agreed that Complainant had done stucco work on 48 windows in the quad buildings.

Walling testified that he believed Complainant had already been overpaid for its work and should not receive any more money.

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 established Complainant did not complete stucco work between 64 windows as contracted for. The record did not establish whether Complainant completed any of the stucco work called for by the contract. Complainant argued that the 48 windows on which it retouched stucco in the quad constituted seventy-five percent of the stucco work and was due and owing. Respondent argued that the stucco work contracted for was on the townhomes and that Complainant’s own deductions for work not completed show that the area contracted to be stuccoed was the townhomes. There is evidence to support both positions. Where, as here, the evidence is of equal weight, the Complainant has not borne its burden of proof on this issue,

Regarding the vermiculite, Complainant indicated it did the work in question and should be paid while Respondent claims the work was subpar and had to be repaired. On this record, the value of Complainant’s vermiculite work cannot be determined and, as such, the Complainant has failed to meet its burden of proof on this issue.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar dismiss Complainant’s complaint.

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 21, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors