ALJDEC decisions subject to certification as final

2017A-5244-NPC-ROC · Registrar of Contractors · 2018-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Palo Verde Shotcrete Inc.,

COMPLAINANT,

v.

Harrison Design LLC,

License No: 220403

RESPONDENT.

No. 2017A-5244-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 8, 2018

APPEARANCES: Thomas Martinez, Owner, appeared on behalf of Complainant Palo Verde Shotcrete Inc. Darrell Thomas, Owner and Qualifying Party, appeared on behalf of Respondent Harrison Design LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Harrison Design LLC (Respondent) is the holder of License No. 220403 issued by the Registrar of Contractors (Registrar).

On or about October 16, 2017, Palo Verde Shotcrete Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $4810.00 for shotcrete.

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).

Thomas Martinez, Complainant’s Owner, testified that the total due to Complainant was $4810.00. Mr. Martinez acknowledged that the contract provided payment was due upon completion of Complainant’s work. Mr. Martinez admitted that there were issues with Complainant’s performance on the project, but asserted that he it would have been able to correct the flaws if it had not been driven off the job. Mr. Martinez argued that the complaint Respondent filed with the Registrar included 24 issues, but almost all of them were dismissed by the Registrar.

Darrell Thomas, Respondent’s Owner and Qualifying Party, testified that Complainant’s work on the project was the worst he had seen in his career. Mr. Thomas stated that Complainant arrived on the jobsite with a total of three workers when, in his opinion, the job would require at least five workers on site. Mr. Thomas stated that he questioned Mr. Martinez about the crew and their ability to perform the work. Mr. Thomas asserted that the project was riddled with issues including walls out of plump, steps not level, cracks forming, and shotcrete on the walls and house. Mr. Thomas stated that he gave Complainant ample time to correct the issues, but the work remained undone. Mr. Thomas indicated that the floor of the pool started cracking, which lead him to believe the floor was not adequate. Mr. Thomas stated that they took ten core samples of the floor and only one of the ten came out six inches thick. Mr. Thomas indicated that the Registrar dismissed the complaint items because the work had been modified by another contractor. Mr. Thomas testified that he was awaiting a report from an engineering firm who had examined the project, but he projected it would cost in excess of $20,000.00 to repair Complainant’s work. Mr. Thomas stated that he had already spent $11,000.00 on backcharges attempting to correct the problems. Mr. Thomas opined that at this point, it may be more cost effective to remove the entire project and start over.

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.

Complainant failed to establish that Respondent owed Complainant any monies on the project. The contract provided that payment was due upon completion, and Complainant acknowledged it did not complete the project. Further, the condition of the work that was done necessitated repairs at a cost that far exceeded the original contract price that Complainant claims to be owed.

Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $4810.00 for services or materials rendered in connection with Respondent’s contracting business.

Therefore, no grounds exist to impose discipline against Respondent’s license

RECOMMENDed order

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Palo Verde Shotcrete Inc.’s complaint in Case No. 2017-5244 against Respondent Harrison Design LLC’s License No. 220403.

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 26, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors