ALJDEC decisions subject to certification as final

2017A-588-NPC-ROC · Registrar of Contractors · 2017-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

United Subcontractors Inc.,

COMPLAINANT,

v.

Continental Housing Solutions LLC,

License No: 302395

RESPONDENT.

No. 2017A-588-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 1, 2017

APPEARANCES: Dave Cazel, employee, appeared on behalf of Complainant United Subcontractors Inc. Paul Soldo, Owner and Qualifying Party, appeared on behalf of Respondent Continental Housing Solutions LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Continental Housing Solutions LLC (Respondent) is the holder of License No. 302395 issued by the Registrar of Contractors (Registrar).

On or about February 1, 2017, (Complainant) filed an Unlicensed Complaint Form against Statewide Housing Solutions, LLC (Statewide) with the Registrar alleging that Complainant contracted with Statewide to install upgraded insulation in a single family residence in Apache Junction. Complainant asserted that it was unaware that Statewide was unlicensed until Paul Soldo stopped responding to phone calls and letters requesting payment. Complainant alleged that Statewide had failed to pay it the sum of $857.00 plus tax for the project.

Upon review, the Registrar determined that “Respondent was not using the right name,” but Mr. Soldo was on the license for Respondent Continental Housing Solution LLC.

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).

Dave Cazel testified that he entered into a contract with Mr. Soldo representing Statewide on December 2, 2015. Mr. Soldo signed the contract without any designation that he was acting in any other capacity than as a representative for Statewide. Mr. Cazel stated that he believed Mr. Soldo and Statewide were acting as the general contractor on the project. Mr. Cazel testified the total amount due was $906.58 and Mr. Soldo had not paid anything toward that amount.

Mr. Soldo, Member of Respondent, testified that he was hired by the property owner to act as a referral service during the construction of his home, but the owner wanted to act as the General Contractor. Mr. Soldo submitted a statement from the owner indicating that Mr. Soldo was acting as his own general contractor and was authorized to act on his behalf “with all interactions with the city of Apache Junction” and that Mr. Soldo would “be assisting [the owner] in pulling permits, setting schedules for inspections and answering any questions that the City of Apache Junction may have as it pertains to this project.” Notably, the authorization specifically provided that Mr. Soldo was authorized to act on the owners behalf from July 30, 2015, through November 1, 2015. Mr. Soldo acknowledged he was “acting as a middle man.” Mr. Soldo indicated sometimes the owner would pay him and he would then pay the contractors and sometimes the owner paid the contractors directly. Mr. Soldo also testified that Statewide was never licensed with the Registrar and Respondent was not licensed until January 4, 2016, after the contract had been executed. Mr. Soldo stated he did not understand why his new license would be affected by these issues that occurred before Respondent was even licensed.

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) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

. . . .

(10) Failure 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 established that Mr. Soldo and/or Statewide was engaged in contracting activities in that Mr. Soldo was acting as a general contractor on the project.

The evidence established that Mr. Soldo and/or Statewide, as the general contractor on the project, owed Complainant a total of $906.58 for Complaint’s work.

While Mr. Soldo and/or Statewide owed Complainant money on the project, the materials and services Complainant rendered to Mr. Soldo and/or Statewide was not “in connection with the licensee’s operations as a contractor” because Mr. Soldo and/or Statewide were not licensed contractors at the time.

Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $906.58 for services or materials rendered in connection with Mr. Soldo and/or Statewide’s contracting business. This is not to say that Complainant cannot pursue other remedies available to Complainant.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar dismiss the complaint in Case No. 2017-588.

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, May 19, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors