ALJDEC decisions subject to certification as final

2016A-5157-ROC · Registrar of Contractors · 2017-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The Door And Trim Store,

COMPLAINANT,

v.

Arizona Visions Windows and Doors LLC ,

License No: 283973,

RESPONDENT.

No. 2016A-5157-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 18, 2017

APPEARANCES: Sonya and Armando Orona, owners of The Door and Trim Store appeared on behalf of Complainant. Arizona Visions Windows and Doors LLC was represented by Britt Hall, its owner and representative.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

Arizona Visions Windows and Doors LLC (Respondent) is the holder of License No. 289373 issued by the Registrar of Contractors (Registrar).

The Door and Trim Store (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay $6,055.62 stemming from doors ordered on July 7, 2016 and July 26, 2016. Complainant contended that Armando Orona’s son, Miguel Orona worked as Complainant’s general manager during that time frame and arranged for Respondent’s purchase of the doors without a signed purchase order or any kind of written agreement.

Respondent denied purchasing the doors in question and said it had no written record showing that it had ever ordered the doors in question or had the doors delivered to any of its jobsites.

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).

Sonya Orona testified that Complainant ”gave blind trust” to Miguel Orona in performing his work as Complainant’s general manager. She understood that Miguel Orona sold Respondent $6,055.62 worth of product in July 2016 and agreed that Respondent could pay for it later without having a signed purchase order. Although she was not personally involved in the sale to Respondent, she believed that someone from Respondent picked up the doors in question without signing any paperwork linking Respondent to the doors. Sonya Orona did provide an unsigned purchase order showing that some product was ordered for Respondent and other product was ordered for other customers.

Miguel Orona subsequently formed a competing door company with Britt Hall called Noble Door and Trim and did not respond to the Tribunal’s attempts to have him testify telephonically in this matter.

Sonya Orona testified that prior to leaving Complainant both Miguel Orona and Ricardo Silva, Complainant’s former production manager, attempted to collect the money owed by Respondent from Brit Hall and Hall agreed the he would pay. The Complainant attached a text message from Hall agreeing to settle the account, but the message did not reference an amount or indicate what had been purchased.

Reached by telephone, Silva who is now employed by Noble, was reluctant to offer testimony and would only say he remembers trying to collect money for Complainant from Respondent, but could not recall what was ordered or how much money Respondent owed Complainant. Silva stressed that he did not what to be involved with the Complaint.

Armando Orona testified that Miguel Orona game to him and offered Complainant a payment on behalf of Respondent in the amount of $2,000.00, promising that the rest of what was owed would be paid later. Armando Orona refused because he did not want to get involved in a long, drawn out payment arrangement.

Britt Hall testified that he is sorry for the trouble in the Orona family and would pay the amount in question if Complainant could produce signed purchase orders or some kind of proof that Respondent had received the product specified in the July 2016 invoices. He indicated that he has no record of ordering or receiving these products. Hall said that he wrote the text messages agreeing to settle Respondent’s account with Complainant while out in the fields and erroneously assumed it related to a small balance for extra hardware Respondent may have requested.

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.

In the absence of a written agreement between the parties relative to the invoices in question the Tribunal cannot determine by a preponderance of the evidence that such an agreement to purchase product for $6,055.62 existed. While Complainant is adamant that such an agreement existed and the product was picked up, Respondent denies ordering or receiving that product. In the absence of written documentation of the orders or deliveries, or testimony from someone directly involved with the sale to Respondent, Complainant has failed to meet it burden of proof that Respondent violated A.R.S. § 32-1154(A)(10). In addition, while there is some evidence that Respondent agreed that it owed Complainant some amount of money, the record does not establish the precise amount of money owed or that it is above the statutory threshold of $750.00.

RECOMMENDed order

Complainant’s Complaint should 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, April 25, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors