ALJDEC decisions subject to certification as final

2016A-674-ROC · Registrar of Contractors · 2016-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2016 APPEARANCES: Charles Donald Hibbard Jr., Owner and Qualifying Party, appeared on behalf of Complainant Gilbert Tiger Enterprise, Inc. Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Done Right Demolition LLC (Respondent) is the holder of License No. 297421 issued by the Registrar of Contractors (Registrar). 2. On or about October 12, 2015, Gilbert Tiger Enterprise Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $2,802.98 for back charges for a dumpster provided on a job site, for an alternate contractor to correct work done by Respondent, and for a payment to Respondent’s supplier to avoid a lien being placed on the project. On the project, Complainant was the general contractor and Respondent was a subcontractor. 3. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 4. The Registrar issued a Notice of Hearing, setting a hearing on May 23, 2016, at 10:00 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. 5. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 6. A hearing was held on May 23, 2016. Complainant presented the testimony of Mr. Hibbard, Eric Hibbard, and James Castaneda. 7. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 8. Mr. Hibbard testified that when Complainant was building a Taco Bell, Respondent was contracted to perform demolition work on the project. When a representative of Complainant walked the job with Respondent, Respondent was instructed to remove four “caps” from the project site. During the project, Respondent removed 16 “caps”, so Complainant had to have a different subcontractor repair the work. Complainant also agreed to let Respondent use a dumpster it had on site rather than requiring Respondent to bring its own to the site. 9. Complainant paid Respondent for all work performed on the job less the retention payments due. On or about December 7, 2015, Complainant issued an invoice to Respondent with the following line items: $484.30 as a back charge for the use of the dumpster and $2,150.00 as a back charge for the replacement of the concrete “caps”. Also included were reductions resulting from the retention payments of $890.00 and $732.50 Complainant owed Respondent. The total amount due to Complainant was listed as $1,011.80. 10. In February 2016, Complainant became aware that Respondent had rented an articulating lift from Sunbelt Rentals and had failed to pay the invoice. Sunbelt Rentals was threatening to place a lien on the project due to Respondent’s failure to pay. To avoid the lien, Complainant paid the invoice of $1,791.18. 11. On or about February 18, 2016, Complainant issued an invoice to Respondent for $1,791.18 as repayment for the payment Complainant made to Sunbelt Rentals. CONCLUSIONS OF LAW 1. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 2. 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. 3. 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). 4. 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 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.

Emphasis added.

5. In this matter, Complainant was the general contractor and Respondent was the subcontractor. As to the items identified on the invoices, the back charge for the dumpster constitutes a material or service rendered by Complainant to Respondent. The back charges for the work done to replace the “caps” and the payment made to Sunbelt Rentals do not constitute materials or services rendered by Complainant to Respondent. These are more properly categorized as damages to Complainant. It is noted that Complainant did not file a workmanship complaint against Respondent with respect to this project. 6. As the only item charged by Complainant to Respondent that constituted a material or service provided by Complainant to Respondent would be the provision of the dumpster, and Complainant only charged $484.30 for that item, Complainant failed to establish that Respondent failed to pay Complainant monies in excess of $750.00 for materials or services rendered in connection with Complainant’s operations as a contractor. 7. Therefore, Complainant failed to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10). RECOMMENDed order Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Gilbert Tiger Enterprise Inc. and close the Complaint in Case No. 2016-674. 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, June 13, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826