ALJDEC decisions subject to certification as final

2017A-2433-NPC-ROC · Registrar of Contractors · 2017-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

E H S Restoration LLC,

COMPLAINANT,

v.

Legendary Construction & Remodeling LLC, License No. B-3.306104-R,

RESPONDENT.

No. 2017A-2433-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 31, 2017, at 1:00 p.m.

APPEARANCES: E H S Restoration LLC (“Complainant”) appeared through Keith Michael Pomonis, its qualifying party/member; Legendary Construction & Remodeling LLC (“Respondent”) appeared through Lyn-Marie Schachtel, its member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about January 6, 2013, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.282881-D for dual residential and small commercial contracting to Complainant.

On or about June 29, 2016, the Registrar issued License No. B-3.306104-R for residential general remodeling and repair contracting to Respondent.

On or about May 9, 2017, Complainant filed a complaint with the Registrar that alleged that Respondent had paid only $1,000.00 on a $2,873.93 subcontract to perform construction work at a project located at 2941 E. Redfield Rd., Phoenix, Arizona 85032 (“the project”).

Respondent did not resolve the complaint and on May 24, 2017, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s contractor’s license.

Respondent filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that any monies that would otherwise have been owed to Complainant were offset by $3,200.00 that Complainant owed to Respondent for consulting services that Respondent’s member, Lyn-Marie Schachtel, had provided to Complainant.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A hearing was held on July 31, 2017. Complainant’s qualifying party/member Keith Pomonis testified on its behalf. Ms. Schachtel testified and submitted seven exhibits on Respondent’s behalf.

Hearing Evidence

Mr. Pomonis testified that Respondent owed Complainant $1,478.93 exclusive of interest for the subcontract on the project.

Ms. Schachtel acknowledged that Respondent owed Complainant approximately $1,400.00 for its work on the project. Ms. Schachtel testified that she had performed bookkeeping and other office services for Complainant’s construction business and that it owed her at least $3,200.00 for this work, including overtime and amounts that Complainant had allegedly offered in texts and emails.

Mr. Pomonis acknowledged that Complainant had hired Ms. Schachtel to perform bookkeeping and other office services, although he disputed the amount that Complainant owed for this work. Mr. Pomonis testified that Complainant only owed Ms. Schachtel one week’s pay, or $800.00, for this work and that Complainant had attempted to pay Ms. Schachtel, but that she refused to pick up Complainant’s check for the money owed.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to revoke or suspend Respondent’s contractor’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

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.” (Emphasis added.)

Ms. Schachtel acknowledged that Respondent owed Complainant approximately $1,400.00 for Complainant’s work on a subcontract for construction work. Mr. Pomonis acknowledged that Complainant owed Respondent’s principal Ms. Schachtel at least $800.00 for bookkeeping and other office services that she performed to help Complainant in its contracting business.

Because $800.00 deducted from $1,478.93 is only $678.93, which is less than the $750.00 required for a violation of A.R.S. § 32-1154(A)(10), Complainant has not established that Respondent violated the only statute charged in the Registrar’s Citation for Alleged 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 final order in this matter, Complainant E H S Restoration LLC’s complaint in Case No. 2017-3433 against Respondent Legendary Construction & Remodeling LLC’s License No. B-3.306104-R shall be 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 will be five days from the date of that certification.

Done this day, August 7, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors