ALJDEC decisions subject to certification as final

2018A-60-NPC-ROC · Registrar of Contractors · 2018-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cal-Pro Roofing LLC,

COMPLAINANT,

v.

T H D At Home Services Inc dba,

The Home Depot At Home Services,

License No: 193323

RESPONDENT.

No. 2018A-60-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 5, 2018, 8:30 A.M.

APPEARANCES: Jorge Urcino, owner, and Steve Urcino, Chief of Operations, appeared on behalf of Complainant; Ron Hatch, Services License Manager, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. T H D At Home Services, Inc., dba, The Home Depot At Home Services (Respondent), is the holder of License Number 193323 issued by the Registrar of Contractors (Registrar).

2. On or about January 5, 2018, Cal-Pro Roofing, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $18,808.14. This amount represented a series of alleged unpaid invoices relating to roofing work performed by Complainant for Respondent at various residences. (Complainant’s Exhibit 1).

3. On January 18, 2018, 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. The Registrar issued a Notice of Hearing setting a hearing for April 5, 2018, at 8:30 A.M. At the hearing, Complainant presented the testimony of Jorge Urcino, owner, and Steve Urcino, Chief of Operations. Respondent presented the testimony of Ron Hatch, Services License Manager. The Tribunal received and admitted Complainant’s exhibit number 1.

5. Steve Urcino on behalf of Complainant testified that there was a master contract between Complainant and Respondent covering all roofing jobs and that each job would have a work order generated by Respondent reflecting materials provided by Respondent and a purchase order generated by Respondent reflecting how much Complainant would be paid for each job. He testified the contract provided that Respondent would provide all materials at the particular job site and Complainant would provide the workers. He stated work orders would consist of Respondent’s estimate of what Complainant would be paid and that Complainant would provide follow-up invoices to Respondent with adjustments to the work order during and after the job was completed. He stated the unpaid invoices in question primarily represent additional charges to Respondent for trip charges for extra trips made by Complainant and extra materials Complainant was required to purchase.

6. Mr. Urcino further testified that Respondent made a partial payment of $3,845.85 to Complainant on December 22, 2017, leaving an unpaid balance of $14,962.29. He stated that the largest invoice of the unpaid invoices in the amount of $7,349.75, dated December 26, 2017, for which Complainant seeks recovery was not an invoice for work done or new charges but was instead an invoice to recover back charges claimed by Respondent applicable to previous invoices. (Complainant’s Exhibit 1). He stated that Respondent had sent a remittance form with Respondent’s previous payments made to Complainant outlining the back charges claimed by Respondent applicable to various invoices.

7. Ron Hatch on behalf of Respondent testified that if there was ever an instance where Complainant was required to go back to a job for whatever reason, Complainant was required to receive approval from Respondent in advance and that Respondent would issue a new work or purchase order. He stated some of Complainant’s trip charges were denied because they were not approved and some were denied because a new contractor was hired by Respondent to complete Complainant’s work.

8. 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. Complainant has not presented sufficient evidence to show the amounts due from Respondent, if any. Complainant may very well be due sums from Respondent. However, Complainant has simply has not provided sufficient documentation to show that or any amount. First, Complainant failed to provide the underlying contract between Complainant and Respondent, which may have had some bearing on Complainant’s entitlement to some of the charges it sought. Second, the dealings between Complainant and Respondent on any particular job involved a purchase and work order generated by Respondent, and an invoice or series of invoices generated by Complainant. No work or purchase orders were offered into evidence. Rather, it appears that Complainant has presented into evidence only the last invoice, or an invoice generated after Respondent has made payment, without all documentation reflecting payments and charges leading up to that final or post-payment invoice. Thus, there is not sufficient documentation presented to substantiate or reconcile the amounts Complainant alleged are due.

6. A reconciliation of the amounts allegedly unpaid by Respondent becomes even more difficult because a large portion of the amount sought by Complainant, $7,349.75, dated December 26, 2017, is not for new charges but is simply Complainant’s rebilling to Respondent for back charges previously claimed by Respondent. These back charges apparently apply not only to jobs and invoices that are the subject of this proceeding, but also to jobs and invoices that are not. Therefore, based on the evidence presented, it is impossible to allocate the partial payment of $3,845.85 made by Respondent to any particular invoices or any component of any invoice, such as materials claimed to have been purchased by Complainant. Thus, even if Complainant could have shown that it purchased additional materials for a particular job, Complainant conceivably could have already been reimbursed for that purchase. It cannot be determined from the evidence presented whether any particular amount is unpaid or has been reimbursed by Respondent.

7. Accordingly, in this matter, the evidence is incomplete and does not support a finding that Respondent failed to pay the amount of $18,808.14 (or the revised unpaid request of $14,962.29) to Complainant for materials or services rendered in connection with Respondent’s operations as a contractor. Complainant has not 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 the final order in this matter, that the Citation and Complaint in Case No. 2018A-60 shall be dismissed.

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, April 25, 2018.

/s/ Roger Geddes______

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors