ALJDEC decisions subject to certification as final
2017A-5846-NPC-ROC · Registrar of Contractors · 2018-02-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Quality One Shotcrete Inc,
COMPLAINANT,
v.
Sunset Builders & Design LLC,
License No:
297333
RESPONDENT.
No. 2017A-5846-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 19, 2018, 10:00 A.M.
APPEARANCES: Diana Cummard appeared on behalf of Complainant; Javier Munoz and Efren Espino appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
1. Sunset Builders & Design LLC (Respondent), is the holder of License Number 297333 issued by the Registrar of Contractors (Registrar).
2. On or about November 21, 2017, Quality One Shotcrete Inc., (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $7,560.00. This amount represented an unpaid invoice, dated September 28, 2017, on and relating to work performed by Complainant consisting of the shotcrete treatment to a proposed swimming pool at a residence under construction by Respondent.
3. On December 8, 2017, the Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) for the alleged failure by Respondent to pay monies in excess of $750.00 when due for materials or services rendered in connection with Respondent’s operations as a contractor.
4. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
5. A hearing was held on January 19, 2018. Diana Cummard, owner of Complainant, appeared and testified on behalf of Complainant; Javier Munoz, owner of Respondent, and Efren Espino, project manager of Respondent, appeared and testified on behalf of Respondent.
6. Diana Cummard on behalf of Complainant testified that the work was performed and completed on September 26, 2017, but that no amounts on the contract have been paid. She testified that of the $7,560.00 due, $7,250.00 represented the original verbal bid amount, $110.00 represented an amount for additional material needed to widen a shelf area with bar stools, and $200.00 represented an amount for pre-wiring on a completely unrelated job.
7. Ms. Cummard further testified that Respondent issued a check to Complainant in December 2017 in the amount of $5,500.00, although the check was dated December 17, 2016. She indicated she did not negotiate the check because it stale dated and because Respondent was not willing to accept partial payment.
8. Efren Espino on behalf of Respondent testified that Respondent was not disputing the original bid amount of $7,250.00 and considered the payment made of $5,500.00 to be a progress payment. He indicated the date of that check was a clerical error and when it was brought to the attention of Respondent, Respondent offered to issue a check with a new date. Mr. Espino testified that Complainant refused because it was not a payment in full.
9. He further testified that the full amount of the invoice was not paid because of workmanship issues with Complainant’s work. He testified that the “Baja edge” of the pool was wavy and had dips and that there were bows on the inside walls. According to Mr. Espino, there were also hollow areas that would break up when tapped with a hammer and there were also areas of the widened shelf area that were lifting. Respondent submitted photographs to depict these deficiencies. (See Respondent’s Exhibit “1”)
10. Mr. Espino testified that Respondent deducted an amount it estimated it would cost to hire another contractor to remedy the alleged deficiencies in Complainant’s work. Javier Munoz testified on behalf of Respondent that this amount is what Respondent’s pebble sheen contractor would charge to correct the deficiencies.
11. With respect to the $110.00 itemized amount on the invoice for extra material, Mr. Espino testified that the plan drawings that were sent to Complainant show a shelf of three feet, six inches, but Complainant only installed a shelf of two feet, six inches. He indicated Kenny, the foreman for Complainant, acknowledged the error.
12. With respect to the $200.00 itemized amount on the invoice for pre-wiring, Mr. Javier testified that although it was discussed that Complainant might be hired by Respondent on another nearby residential pool, Respondent never asked Complainant to pre-wire that pool for the shotcrete. He testified that the wiring was not used and that Complainant was ultimately not hired for that project.
13. At the conclusion of the hearing, Ms. Cummard agreed to have Complainant address the alleged deficiencies in the work. Respondent at the hearing also issued another check to Complainant in the amount of $6,000.00, an amount requested by Complainant. However, neither party to date has advised the Tribunal whether Complainant has corrected the alleged deficiencies or whether Respondent has made any further payments to Complainant.
14. Respondent did not assert that it lacked the capacity to pay the amount Complainant contends is due.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. 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.
5. The evidence established that of the original amount of $7,560.00 that Complainant allege is due, the payment of the amount of $6,000.00 made by Respondent at the hearing leaves an alleged balance owing of $1,560.00.
6. The itemized amount of $200.00 of the $7,560.00 unpaid invoice represents pre-wiring performed by Complainant for Respondent on a different residence and project that Complainant apparently prematurely anticipated working on. However, according to Respondent, Respondent did not request the pre-wiring nor was the pre-wiring ever used. Complainant has not established that the itemized amount of $200.00 on the unpaid invoice is due for materials or services rendered.
7. The itemized amount of $110.00 of the $7,560.00 unpaid invoice represents additional material needed to widen a shelf from two feet, six inches to three feet, six inches Respondent ‘s evidence supports its contention that Complainant misread the dimensions on the drawings. Complainant did not refute that evidence. Complainant has not established that the itemized amount of $110.00 on the unpaid invoice is due for materials or services rendered.
8. Thus, at issue is the amount of $1,250.00 of the original bid amount of $7,250.00 on the unpaid invoice. Respondent has established that there were workmanship issues with respect to the work performed by Complainant. However, Respondent has failed to justify the cost to remedy these deficiencies. Respondent offered no evidence in the form of bids or other witnesses to support its estimate as to the cost to correct Complainant’s work. Testimony as to what a contractor told Respondent what the cost would be, without more, is an insufficient basis to justify a chargeback of $1,250.00.
9. Accordingly, in this matter, Respondent failed to pay the amount of $1,250.00 to Complainant for materials or services rendered in connection with Complainant’s operations as a contractor. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(10).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Sunset Builders & Design LLC’s, License Number 297333 is suspended until the Registrar receives and accepts written verification that Sunset Builders & Design LLC, has paid $1,250.00 to Quality One Shotcrete Inc., in certified funds, or that Sunset Builders & Design LLC, has already paid that amount to Quality One Shotcrete Inc., since the conclusion of the hearing.
It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $1,250.00 in certified funds, the Registrar may close the Complaint in Case No. 2017A-5846-NPC-ROC.
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 five days from the date of the certification.
Done this day, February 8, 2018.
/s/ Roger Geddes______
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors