ALJDEC decisions subject to certification as final

2019A-02587-NPC-ROC · Registrar of Contractors · 2019-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2019, 9:00 A.M. APPEARANCES: Loren J. Smith appeared on behalf of Complainant; Philip J. Pitz appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Pitz Construction Inc., DBA: Blue Sky Builders (Respondent), is the holder of License Number 105829 issued by the Registrar of Contractors (Registrar). 2. On or about May 13, 2019, LJS Builders, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging that Respondent owed Complainant the sum of $2,389.30. This amount represented three unpaid invoices relating to labor provided by Complainant in connection Respondent’s various construction projects. 3. On May 30, 2019 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. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 4. The Registrar issued a Notice of Hearing that set a hearing for October 17, 2019, at 9:00 A.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about May 30, 2019, at its address of record. 5. At the hearing, Loren J. Smith testified on behalf of Complainant and presented the testimony of Christina Smith; Philip J. Pitz testified on behalf of Respondent. 6. Loren Smith, owner, testified on behalf of Complainant that three invoices were past due in the amount of $2,389.30 for labor Complainant provided to Respondent for use in Respondent’s projects as a contractor. He disputed that Complainant owed Respondent any sums on projects unrelated to the projects for which he claimed were due in this case. 7. Christina Smith testified on behalf of Complainant that Respondent brought Case No. 2019A-03655 against Complainant relating to other projects unrelated to the projects for which Complainant claims sums are due in this case, but that Respondent’s case has since been dismissed. She read into the record the letter from the Registrar dismissing the Complaint. 8. Philip Pitz, President and owner, testified on behalf of Respondent that he did not dispute the existence or the extent of the past due amounts. Rather, he testified that Respondent was required to perform repairs of Complainant’s work on other projects at a cost of $2,841.50 to Respondent, leaving a balance owed from Complainant to Respondent in the amount of $452.20. He stated that he was unaware that Case No. 2019A-03655 had been dismissed.

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 Respondent failed to pay the amount of $2,389.30 to Complainant for labor rendered in connection with Respondent’s operations as a contractor. There was no evidence presented to rebut the existence or extent of nonpayment nor was there evidence presented that Respondent lacked the capacity to pay. Respondent’s efforts to apply a charge back for amounts relating to the Respondent’s repair of alleged poor workmanship on other jobs performed by Complainant for Respondent is unavailing. Respondent did not provide sufficient evidence of the alleged poor workmanship. Further, the alleged poor workmanship was the subject of a dismissed Complaint. 6. In this matter, 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, Pitz Construction Inc.’s, License Number 105829 is suspended until the Registrar receives and accepts written verification that Pitz Construction, Inc., has paid $2,389.30 to LJS Builders, LLC, in certified funds. It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $2,389.30 in certified funds, the Registrar may close the underlying Complaint. 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, November 6, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826