ALJDEC decisions subject to certification as final

2017A-3579-NPC-ROC · Registrar of Contractors · 2017-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Phoenix Patio Systems Inc.,

COMPLAINANT,

-v-

Arizona Pool & Landscape Construction LLC,

License No. 296198, 296199

RESPONDENT

No. 2017A-3579-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 27, 2017

APPEARANCES: William and Michelle Williams for Complainant; Jonathan Charnock for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On August 9, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on September 27, 2017 at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and Complaint.

Complainant Phoenix Patio Systems, Inc. holds license numbers 124073 and 124074 issued by ROC. William Todd Williams and Michelle Marie Williams are officers in the corporation and Mr. Williams is the qualifying party.

Respondent Arizona Pool & Landscape Construction, LLC holds license numbers 296198 and 296199 issued by ROC. Jonathan Ronald Charnock is Respondent’s qualifying party and owner.

Complainant asserts that Respondent owes Complainant $10,215.12 for work on four jobs. Respondent acknowledges that it has not paid Complaint for two jobs, and asserts that there is an offset because Complainant overcharged Respondent on one job and did not comply with the plans on that job.

The four projects at issue are: the Chesney job, the Goldberg job, the Rein job, and the Tresa Apartments job. Complainant billed Respondent a total of $10,215.12 for these projects: $4347.17 for Chesney; $4519.40 for Goldberg; $27.62 for Rein; and $1282.88 for Tresa.

Respondent ostensibly paid Complainant the $10,215.12 with a check dated June 22, 2017, but that check was returned for insufficient funds.

Respondent had previously submitted to Complainant checks dated May 31, 2017 and March 31, 2017, both of which were returned for insufficient funds.

Mr. Charnock testified that on the Chesney job Complainant had overbilled by $1400.00, and that Complainant had failed to follow the plans putting the project out of conformity with the applicable setback requirement. Based on these allegations, Respondent was withholding payment on both the Chesney and Tresa jobs.

Complainant had entered in to evidence emails showing that Mr. Charnock had approved a change-order on the Chesney job that accounts for the $1400.00 difference between the original quote and the amount Complainant billed. The change-order was necessary because Respondent (or another subcontractor) deviated from the plans and Complainant was required to install a larger patio roof than called for in the original plan.

At the hearing, Mr. Charnock asserted that Respondent had paid for the Rein and Tresa jobs, but not Chesney or Goldberg. Whereas in Respondent’s answer to the Citation and Complaint, Mr. Charnock asserted that it had paid Complainant for Rein and Goldberg (but not Chesney and Tresa).

Respondent presented no substantial evidence to show that it had actually paid Complainant for any of the jobs at issue. The bounced checks are, of course, not payment, and show financial irresponsibility on Respondent’s part.

Mr. Charnock asserted that the check for $10,215.12 bounced because Respondent was changing banks at about the time it was issued. Even if true, this is still a sign of financial irresponsibility on Respondent’s part and Mr. Charnock provided no evidence to corroborate this testimony and he provided no explanation for Respondent’s two other bounced checks.

In an email dated July 17, 2017, Mr. Charnock informed Complainant that Respondent should be able to pay in full for the Tresa job by “next week,” but it failed to do so.

In an email dated September 18, 2017, Mr. Charnock informed Complainant that Respondent “can” pay $5000 the next day and the remainder in the next two weeks, but it failed to make any payments.

CONCLUSIONS OF LAW

Unless otherwise provided by law, 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.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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 . . . .” Ariz. Rev. Stat. section 32-1154(A).

Mr. Charnock acknowledges that Respondent has not paid Complainant for the Chesney and Tresa jobs. Respondent did not prove its defense that Complainant deviated from the plans and overbilled on the Chesney job and, to the contrary, the evidence shows that Respondent approved the changes at issue. Respondent also did not prove that it paid Complainant for the Rein and Tresa jobs.

The preponderance of the evidence shows that Respondent owes Complainant $10,215.12, in violation of Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent bounced three checks, which shows that Respondent is unscrupulous, fiscally irresponsible, or both, and is a factor in aggravation.

Respondent made promises to pay Complainant, but did not honor those promises, which shows that Respondent is unscrupulous, fiscally irresponsible, or both, and is a factor in aggravation.

Mr. Charnock’s own email approving the change-order shows that Complainant had neither overcharged Respondent nor deviated from the approved plans on the Chesney job. Either Mr. Charnock did not know who was actually responsible for the problems on that job, which is a sign that he is unqualified, or his testimony was false. This is a factor in aggravation.

Mr. Charnock’s testimony regarding which jobs for which Respondent alleged it had paid was not consistent with the information he supplied in Respondent’s answer, which raises a further question about his reliability and truthfulness.

Respondent’s licenses should be revoked.

RECOMMENDED ORDER

IT IS RECOMMENDED that Arizona Pool & Landscape Construction, LLC’s license numbers 296198 and 296199 be revoked on the effective date of the final Order in this matter.

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, October 16, 2017

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors