ALJDEC decisions subject to certification as final

2019A-03360-NPC-ROC · Registrar of Contractors · 2019-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Cowboy Custom Builders Inc.,

ROC License: ROC 137680,

COMPLAINANT

PCI Bridge LLC,

ROC License: ROC 310231,

RESPONDENT

No. 2019A-03360-NPC-ROC

No. 2019A-03875-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 20, 2019

APPEARANCES: Gregg Gibbons, attorney, appeared on behalf of Arizona Cowboy Custom Builders, Inc. (Complainant). Jerry Dean Pritchard appeared on behalf of PCI Bridge LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera

_____________________________________________________________________

FINDINGS OF FACT

PCI Bridge LLC (Respondent) is the holder of License No. 310231 issued by the Registrar of Contractors (Registrar).

On or about June 28, 2019, Arizona Cowboy Custom Builders, Inc. (Complainant) filed a Complaint, under case number 2019-03360, against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $14,675.00 for work performed.

On or about July 31, 2019, Respondent filed a cross complaint, under case number 2019-03875, against Complainant alleging that Complainant owed Respondent money despite the fact that Respondent also owed Complainant money.

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).

At hearing, Christopher Potter, owner of Complainant, testified on behalf of Complainant. Complainant does concrete work for commercial and residential property. In June 2017, Mr. Potter contracted with Jerry Dean Pritchard, owner of Respondent, whereby Complainant was to construct a drainage culvert at 5023 East Valle Vista Road, Phoenix, AZ 85018 (Valle Vista). On or about July, 25, 2017, Complainant billed Respondent $14,675.00 for labor and materials. Respondent did not pay Complainant for work done by Complainant.

Between July 2017, and June 2018, Mr. Potter contacted Respondent regarding payment. Mr. Pritchard promised to pay Complainant and also gave excuses. Mr. Pritchard told Mr. Potter that he was waiting for payment from other contractors and other real estate deals to pay Complainant.

In June 2018, Mr. Pritchard informed Mr. Potter that Respondent did not owe Complainant any money because Complainant owed Respondent money for work Respondent performed pursuant to another job. Complainant never hired Respondent for any other jobs.

Complainant introduced several invoices presented to it from Respondent. Complainant argued that the invoices were for work done, by Respondent, for other contractors, not Complainant. One of the invoices indicated dirt removal. Complainant only performs concrete work, not dirt removal work.

Additionally, Complainant pointed out that on Respondent’s own Complaint, Respondent admitted, “I owe him money and he owes me money.”

Complainant introduced the testimony of Sage Lentz, owner of Sage Luxury Houses. Mr. Lentz testified that he hired Respondent, as his subcontractor, on a job located at 6001 North 59th Place, Paradise Valley, AZ 85253 (59th Place) and 7012 East McDonald Drive, Paradise Valley, AZ 85253 (McDonald). Respondent was hired for “earth moving services.” Mr. Lentz paid and Respondent was compensated for both projects by either Mr. Sage and/or the homeowner. Even though Complainant also worked on those projects, Respondent’s work had no correlation to Complainant’s work and neither worked for or with each other.

At hearing, Mr. Pritchard acknowledged that he owed Complainant money for work done at Valle Vista. However, Mr. Pritchard argued that Complainant owed him money from the 59th Place and McDonald projects. The invoices Mr. Pritchard gave to Complainant, in 2018, approximately totaled $14,000.00. One of the invoices had a hand written note, authored by Mr. Pritchard, indicated “Jay paid this invoice.” Mr. Pritchard did not provide a reason for that statement on the invoice. While Mr. Pritchard alleged he was not paid for those projects and the party responsible for payment was Complainant, he described the payment procedures set up by Mr. Lentz on both projects.

Respondent argued that it filed its Complaint under case number 2019-03875 because Complainant owed him money from the 59th Place and McDonald projects.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due or had not received sufficient monies as payment on the project.

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 $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

With respect to case number 2019A-03360-NPC-ROC, Complainant established by a preponderance of the evidence that Respondent failed to pay Complainant $14,675.00 for work performed by Complainant. By his own admission, Mr. Pritchard testified that Respondent owed Complainant $14,675.00. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed or had not received sufficient monies as payment on the project.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $14,675.00 for services provided by Complainant.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.

With respect to case number 2019A-03875-NPC-ROC, Respondent failed to establish by a preponderance of the evidence that Complainant owed it money for work performed on the 59th Place and McDonald projects. Respondent failed to show that Complainant was responsible for paying Respondent for any work completed on those projects. Complainant provided evidence that another general contractor paid Respondent in full.

Thus, the Respondent’s complaint must be dismissed.

RECOMMENDed order

Based on the foregoing,

IT IS RECOMMENDED that the Registrar suspend PCI Bridge LLC, License No. 310231, issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $14,675.00 in certified funds.

IT IS FURTHER RECOMMENDED that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $14,675.00 in certified funds, the Registrar may close the Complaint in Case No. 2019A-03360-NPC-ROC.

IT IS FURTHER RECOMMENDED Respondent’s case, 2019A-03875-NPC-ROC, be closed.

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, November 29, 2019.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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