ALJDEC decisions subject to certification as final

2017A-4418-NPC-ROC · Registrar of Contractors · 2017-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Triple B Builders LLC,

COMPLAINANT,

v.

Temac Development Inc.,

License No: 190830

RESPONDENT.

No. 2017A-4418-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 14, 2017

APPEARANCES: Bryan and Roxanne Berry appeared on behalf of Complainant Triple B Builders LLC. Respondent Temac Development was represented by James Sparks.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Temac Development Inc. (Respondent) is the holder of License No. 190830 issued by the Registrar of Contractors (Registrar).

On or about August 28, 2017, Triple B Builders LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $11,212.52 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).

Complainant provided testimony that it originally submitted a bid on the project, but was not selected to perform the work. However, Complainant was contacted to complete the project after the original subcontractor failed to perform the work. Pursuant to the regular course of business between Complainant and Respondent, the parties did not execute a written contract and would “figure it out” at the end of the project. During the course of the project, there were multiple additions and changes to the scope of work, but no written changes orders were executed, again with the understanding the parties would “figure it out” later.

When the project concluded, Complainant issued an invoice to Respondent for a total of $12,626.00. Complainant later obtained a credit from 84 Lumber for $1,413.48, which reduced the total due to $11,212,52. Complainant acknowledged that on one document sent to Respondent, the total was incorrectly listed as $3,401.75, but it was sent to two other documents showing the full amount due. Complainant sent multiple emails and invoices to Respondent seeking payment for the project. During the course of the discussion, Respondent asked for a more thorough detailing of the charges that could then be explained to the homeowner. At one point, Respondent emailed the home owner and acknowledged owing Complainant “the $3400.00.”

Timothy McCormac, Respondent’s Qualifying Party, testified that as a normal course of business Complainant and Respondent often “work it out at the end of the project” and acknowledged that both are terrible at paperwork. Mr. McCormac admitted that on this project, the parties did what they usually did, bulldoze, get it done, and then figure out the details. Mr. McCormac acknowledged that the project superintendent authorized the changes in the field, but that the homeowner now refuses to pay for the change orders because they were not properly itemized. Mr. McCormac stated that he would like to see Complainant paid the total amount invoiced, but that he needed supporting documents to convince the homeowner that the charges were legitimate.

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.

By Respondent’s own admission in the email conversations and during the hearing, the evidence established that Respondent owed Complainant at least $3,401.75. As to the total amount invoiced, the parties failed to establish that there was any agreed upon contract amount for the work performed or for the change orders during the project

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $3,401.75 for services or materials rendered in connection with Respondent’s contracting business.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Temac Development Inc.’s License No: 190830 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $3,401.75 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $3,401.75 in certified funds, the Registrar may close the Complaint in Case No. 2017-4418.

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, December 5, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors