ALJDEC decisions subject to certification as final

2017A-3420-NPC-ROC · Registrar of Contractors · 2017-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Revive Construction And Cleaning LLC,

COMPLAINANT,

v.

Bold Framing Inc.,

License No: 106577

RESPONDENT.

No. 2017A-3420-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 3, 2017

APPEARANCES: Rogelio Vasquez, Owner, appeared on behalf of Complainant Revive Construction And Cleaning LLC. Kevin Carroll, Owner and Qualifying Party, appeared on behalf of Respondent Bold Framing Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Bold Framing Inc. (Respondent) is the holder of License No. 106577 issued by the Registrar of Contractors (Registrar).

On or about July 3, 2017, Revive Construction And Cleaning LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $15,000.00 for work performed.

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).

Rogelio Vasquez, Complainant’s Owner, testified that the total due to Complainant was $15,000.00 based on labor costs it had paid out to employees. Mr. Vasquez acknowledged that the contract in question provided only that Respondent would pay Complainant $120,000.00 for the work outlined in the contract and denied any schedule of values or set progress payments throughout the project. Mr. Vasquez admitted that Complainant “didn’t complete anything” on the project. Mr. Vasquez indicated that his calculation of what was due to Complainant was based on the hourly wages it had paid to its workers, including Mr. Vasquez.

Kevin Carroll, Respondent’s Owner and Qualifying Party, testified that he had provided Mr. Vasquez with a schedule of values after the contract was executed and according to the schedule of values, Complainant was first due a payment of $42,000.00 when the wall framing and sheer was complete. Mr. Carroll also asserted that he had paid some of Complainant’s workers directly when they reported they had not been paid by Complainant. Mr. Carroll testified that he had to pay another contractor more to complete the project given the time frames and indicated that Respondent paid far more than it would have if Complainant had completed the work per the contract. Mr. Carroll stated that he had paid Complainant more than the value of the work it had completed.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.

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 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.

The evidence established that Complainant was not due any payments on the project. As Mr. Vasquez acknowledged, the contract provided only a payment of $120,000.00 upon completion of the project. Further, if the schedule of values controlled, Complainant was not due a payment until the wall framing and sheer was complete.

Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant for services or materials rendered in connection with Respondent’s contracting business.

RECOMMENDed order

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Revive Construction And Cleaning LLC’s complaint in Case No. 2017-3420 against Respondent Bold Framing Inc.’s License No. 106577.

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, October 23, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors