ALJDEC decisions subject to certification as final
2016A-4862-NPC-ROC · Registrar of Contractors · 2017-04-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Old Pueblo Stucco and Lath LLC,
COMPLAINANT,
v.
Wasson Commercial Contracting LLC,
License No: 254128
RESPONDENT.
No. 2016A-4862-NPC-REGISTRAR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 13, 2017.
APPEARANCES: Julio Durazo appeared on behalf of Complainant Old Pueblo Stucco and Lath LLC. Danny Wasson appeared on behalf of Respondent Wasson Commercial Contracting LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On January 27, 2017, the Registrar of Contractors, (hereinafter “Registrar”), issued a Notice of Hearing setting the above-captioned matter for hearing on March 13, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
Wasson Commercial Contracting LLC, (hereinafter “Wasson”), holds license number 254128 issued by Registrar. Danny Wasson, (hereinafter “Mr. Wasson”), is a member of the LLC and the qualifying party.
The Old Pueblo is Old Pueblo Stucco and Lath LLC (hereinafter “Overson”); Julio Durazo is Old Pueblo Stucco and Lath LLC’s qualifying party and officer.
Old Pueblo and Wasson entered into a subcontractor contract wherein Old Pueblo was to provide plastering work for the “Lot 2 Mesa Riverview” project.
Under the contract, Old Pueblo agreed to furnish all labor, materials, equipment, tools, supplies, and other items incidental to the prompt and efficient performance of the construction work for the “Lot 2 Mesa Riverview” project.
The date of the contract was May 31, 2016.
On June 9, 2016, Old Pueblo signed the contract.
The amount Wasson agreed to pay Old Pueblo under the contract was $35,987.
Old Pueblo began work on July 30, 2016. Old Pueblo’s last day of work on the project was September 9, 2016.
On August 29, 2016, Wasson paid Old Pueblo $30,000 for the work that Old Pueblo performed.
On December 5, 2016, the Registrar received a complaint from Old Pueblo against Wasson for non-payment.
On January 27, 2017, the Registrar issued a Citation alleging that Wasson may have violated A.R.S. § 32-1154(A)(10).
At hearing, Mr. Wasson testified that Old Pueblo did not complete the work on the “Lot 2 Mesa Riverview” project. Mr. Wasson stated that Wasson issued several 48 hours notices for Old Pueblo to complete the work. Mr. Wasson testified that Old Pueblo damaged the storefronts and failed to maintain the schedule. He stated that Old Pueblo did not protect the surfaces of the windows and millions of lye ate through and removed the anodized finish.
Mr. Wasson testified that Old Pueblo left the plastic on the windows for a long period of time and eventually the plastic was knocked down.
Mr. Wasson testified that because Old Pueblo delayed in working on the project, it had to hire another subcontractor to finish the work.
In September of 2016, Wasson ordered Old Pueblo to cease and desist al work on the project because of the delay.
Mr. Wasson testified that Old Pueblo completed the majority of the work. However, on the last day Old Pueblo worked, Wasson noticed that Old Pueblo had damaged the storefronts. When Wasson contacted Old Pueblo to clean up the work and fix the damage, Old Pueblo did not clean up its work or make the necessary repairs.
Mr. Wasson testified that on Old Pueblo’s last day of work, he did not remove the scaffolds. After the $30,000 check was issued to Old Pueblo on August 29, 2016, the scaffolds were removed and there was damage to the storefront.
Mr. Wasson testified that the owner of the property where Old Pueblo agreed to provide labor and materials has refused to conduct any future business with Wasson due to the delay of the project.
At hearing, Mr. Durazo testified on behalf of Old Pueblo. Mr. Durazo testified that the project should have been completed in about a month and a half. Mr. Durazo testified that Old Pueblo always showed up for work but Wasson was not always ready. Mr. Durazo testified that Old Pueblo completed the work entirely but there were delays because there were other trades involved in the project who were not ready.
Mr. Durazo also testified that Wasson’s Superintendent was verbally abusive and made it difficult for Old Pueblo to work. Mr. Durazo stated he had several witnesses to the verbal abuse but none of them appeared at the hearing.
Mr. Durazo testified that Wasson’s Superintendent told Old Pueblo to set up the scaffolding and then after two days would ask Wasson to remove it. Soon after, Wasson’s Superintendent would tell Old Pueblo to set it up again.
Mr. Durazo testified that work was delayed because Wasson made changes to the plans but did not inform Old Pueblo about the changes.
Mr. Durazo stated that work was also delayed because there were trenches around the concrete and he could not put scaffolds up within five feet of the trenches for safety reasons. Mr. Durazo testified that Old Pueblo’s workers were traveling from Tucson to Phoenix. He stated that Wasson would inform Old Pueblo that the trenches were filled but when his workers arrived, the trenches were not filled. Mr. Durazo testified that Old Pueblo cleaned up all of its work.
Mr. Durazo testified that sometimes Old Pueblo would leave the plastic and tape on the windows because another contractor asked them to leave the plastic there so that it could apply brick veneer.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction.
2. 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. A.A.C. § R2-19-119.
3. 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).
4. 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.")
5. “Statutes shall be liberally construed to effect their objects and to promote
justice.” A.R.S. § 1-211(B).
6. 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).
7. A.R.S. § 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.
8. Old Pueblo failed to establish by a preponderance of the evidence that Wasson failed to pay monies when due for materials and services rendered.
9. The evidence presented at hearing established that Old Pueblo did not complete the work under the contract.
10. The preponderance of the evidence does not show that Wasson violated A.R.S. § 32-1154(A)(10) as alleged.
RECOMMENDed order
IT IS ORDERED that the Citation and Complaint in Case No. 2016A-4862 are 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, April 3, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors