ALJDEC decisions subject to certification as final

2017A-4633-NPC-ROC · Registrar of Contractors · 2018-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Armando Espinoza Castelo,

COMPLAINANT,

v.

Peace Of Mind Renovations LLC,

License No: 310570 and 296638

RESPONDENT.

No. 2017A-4633-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 27, 2017

APPEARANCES: Complainant Armando Espinoza Castelo was represented by Ryan O’Neal. Celeschito Sapalo, Member, appeared on behalf of Respondent Peace of Mind Renovations LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Peace of Mind Renovations LLC (Respondent) is the holder of License Nos. 310570 and 296638 issued by the Registrar of Contractors (Registrar).

On or about September 6, 2017, Armando Espinoza Castelo (Complainant) filed a complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $3,737.00 for concrete 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).

Mr. Castelo testified that he entered into a contract with Respondent to provide the concrete foundation for 14 new homes. Mr. Castelo stated that while the contract provided that Complainant would provide “FULL HOUSE CONCRETE FOUNDATION INCLUDING BUT NOT LIMITED TO ALL FOOTERS,” the agreement was for the concrete of the main living areas of the home only. Mr. Castelo maintained that the garage and rear patio were additional charges not included in the contract. Mr. Castelo indicated the garage and rear patio were 515 square feet at a cost of $2.00 per square foot for a total of $1030.00 extra per lot. The work began on Lot 13. During the work on Lot 13, the excavator went too deep, which resulted in extra concrete and footers at a cost of $1377.00. Mr. Castelo also stated that Respondent requested extra rebar on Lot 13, which was a total cost of $300.00. Mr. Castelo acknowledged receiving $7,030.00 for Lot 13, and indicated $1677.00 remained owing on Lot 13. Mr. Castelo testified that after Lot 13, Respondent agreed to pay $1,000.00 more per lot for the remaining lots. Mr. Castelo acknowledged that Complainant received $7,000.00 for Lots 3 and 4, but maintained he was still owed $2,060.00 for the garage and rear patio on each lot. Mr. Castelo admitted that he did not have any executed change orders signed by Respondent regarding the additional charges on Lot 13, the garage and rear patios, or the increased charge for future lots.

Mr. Sapalo testified that after Lot 13, Respondent agreed to increase the contract price by $1,000.00 as a gesture of kindness because Mr. Castelo kept saying he was not making any money on the project. Mr. Sapalo denied that the garage and rear patio were ever intended to be additional charges as they were part of the plans for each house and were included in the “full house concrete” and “all footers” referenced in the contract. Mr. Sapalo denied approving any change order for the alleged increased costs related to Lot 13.

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 failed to establish that Respondent owed Complainant any remaining sum under the contract.

Complainant did not establish by a preponderance of the evidence that the garage and rear patio were an agreement separate and apart from the contract. Further, Complainant did not present any evidence that Respondent had agreed to any overages. While Respondent agreed to increase the contract price to $7,000.00 for Lots 3 and 4, Respondent paid that amount to Complainant for those lots.

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 Armando Espinoza Castelo’s complaint in Case No. 2017-4633 against Respondent Peace of Mind Renovations LLC’s License Nos. 310570 and 296638.

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, January 16, 2018.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors