ALJDEC decisions subject to certification as final

2019A-04467-NPC-ROC · Registrar of Contractors · 2020-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Res Com Plumbing Co Inc.,

COMPLAINANT

Yarborough Construction Inc.,

ROC License: ROC 285076,

RESPONDENT

No. 2019A-04467-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 20, 2019

APPEARANCES: Luigi Lamberto, Owner and Qualifying Party, appeared on behalf of Complainant Res Com Plumbing Co Inc. James Yarborough, Qualifying Party, appeared on behalf of Respondent Yarborough Construction Inc. and was represented by German Yusufov.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Yarborough Construction Inc. (Respondent) is the holder of License No. 285076 issued by the Registrar of Contractors (Registrar).

On or about September 5, 2019, Res Com Plumbing Co. Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant for work performed on Respondent’s project.

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).

Luigi Lamberto, Complainant’s Owner and Qualifying Party, stated that Complainant did not sign a contract with Respondent, but that a copy of the proposed contract was provided to Complainant and established the scope of work on the project and the agreed price. Mr. Lamberto testified that the total due to Complainant was the final payment of $3791.67 under the contract and the change orders of $3400.00 for a total of $7191.67 that was unpaid as of the date of the hearing. Mr. Lamberto testified as to unexpected issues that arose during the project and asserted that the floor was “made of grout, not concrete.” Mr. Lamberto asserted that because the floor was not complete, Complainant could not install the toilet flanges. Mr. Lamberto asserted that because there was no signed contract, Complainant was not obligated to complete the work by the deadline included in the proposed contract. Mr. Lamberto acknowledged that Complainant did not complete all of the work required under the contract, but argued it was not given the opportunity to do so.

James Yarborough, Respondent’s Qualifying Party, testified that the Respondent started the project on April 12, 2019; the proposed contract was sent to Complainant on April 16, 2019; and Complainant started work on the project on April 22, 2019. Mr. Yarborough stated that the rough plumbing inspection was on May 6, 2019, and Complainant’s expected completion date, per the proposed contract, was July 1, 2019. Because the work was not done by July 1, 2019, Respondent had to employ a different contractor to come in to finish 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.

The evidence established that Complainant did not complete the work required by the proposed contract that the parties operated under as being the contract between the parties. While Complainant alleged it was not able to complete the project because of Respondent’s wrongful acts, that issue was not properly before the Administrative Law Judge. Rather, the issue before the Office of Administrative Hearings was whether Respondent failed to pay monies due and owing for work completed by Complainant. Whether Complainant was improperly terminated from the project is a dispute to be resolved in a different venue.

Because Complainant failed to establish what work had been completed that Respondent had not paid, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant a sum in excess of $750.00 for services or materials rendered in connection with Respondent’s contracting business.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar close Complainant Res Com Plumbing Co. Inc.’s complaint against Respondent Yarborough Construction Inc.

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.

-54864001

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-137160-45720000Done this day, January 6, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000