ALJDEC decisions subject to certification as final

2016A-942-ROC · Registrar of Contractors · 2016-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2016 APPEARANCES: On June 29, 2016: David Schacherbauer, appeared for Complainant; Robert Gawlik; appeared for Respondent;

Ron Schacherbauer, witness, Candace Schacherbauer, witness.

ADMINISTRATIVE LAW JUDGE: Amy Foster _____________________________________________________________________ FINDINGS OF FACT 1. On May 6, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. June 29, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. David Schacherbauer appeared as Complainant and Robert Gawlick appeared as Respondent. The hearing was convened at 1:03 p.m. 3. Respondent holds license number 203889[1] issued by ROC. 4. In June 2015, Complainant David Schacherbauer d.b.a. Designer’s Choice Painting, LLC completed an estimate for Respondent, d.b.a. New Castle Construction under which Complainant was to seal and paint walls, ceilings and closets, paint exterior stucco, and coat the garage floor for residence. 5. The estimate was for $23,900 and was signed by Respondent on July 22, 2015. 6. Additional work was asked for by Respondent and completed by Complainant including door and window staining, paint color change and additional touchups. These additions equaled an additional $16,557.05, bringing the total amount due for the project to $40,457.05. 7. Respondent made payments of $33,282.50 to the Complainant both during the job and after the job was complete. 8. Respondent issued Complainant a check for $2774.55 on or about March 17, 2016. Complainant was then instructed not to cash this check and was instructed to write VOID on the check. 9. Due to credits and extra work, Complainant and Respondent agree, Complainant is owed $3374.05 and that figure is not in dispute. 10. On or about April 28, 2016, Respondent issued Complainant a check for $2032.55 which Complainant refused to cash. Respondent reasserted at the hearing that Complainant was welcome to cash the check at any time. 11. On or about June 21, 2016, Respondent back charged Complainant $146.72 for repainting a hidden closet, $94.00 for painting speakers and cans, and $215.00 for T&G staining, totals $455.72. Respondent alleged other work that was not completed or needed to be redone, but did not offer evidence to substantiate these claims. 12. Complainant’s debt of $3374.05, less the check for $2032.55 and the back charges of $455.72 reduces the debt to Complainant to $885.78. 13. On April 12, 2016, ROC issued a Citation alleging that Respondent may have violated Ariz. Rev. Stat. section 32- 1154(A)(10). CONCLUSIONS OF LAW 1. 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. 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). 3. 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."). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 5. 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). 6. 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.

7. The preponderance of the evidence shows 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 New Castle Construction LLC’s license number 203889 is suspended until ROC receives and accepts written verification that New Castle Construction LLC has paid to David Schacherbauer d.b.a. Designer’s Choice Painting $885.78 in certified funds. If the payment is made before the date of the certification, no suspension shall take place. 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, July 21, 2016.

/s/ Amy Foster Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] License number also given as KB-2.203889-D

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