ALJDEC decisions subject to certification as final

2019A-05621-NPC-ROC · Registrar of Contractors · 2020-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Garage Door Enterprises Inc.,

DBA: Garage Door Medics

COMPLAINANT

Malapai Enterprises Inc.,

DBA: Malapai Building,

ROC License: ROC 175618,

RESPONDENT

No. 2019A-05621-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 8, 2020

APPEARANCES: [All Appearances are Telephonic] Jason Hoven, Complainant;

Susan Martin and Candice Covington, Complainant Employees, Travis Rockley, Former Complainant Employee.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On February 14, 2018, the Registrar issued License No. ROC318294, a Class CR-60 Finish Carpentry license, to Garage Door Enterprises Inc., d/b/a: Garage Door Medics, Complainant herein [hereinafter referred to as “Medics”].

On June 8, 2002, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC175618, Class B - for residential general contracting to Respondent Malapai Enterprises Inc., d/b/a: Malapai Building [hereinafter referred to as “ME/MB”].

Respondent ME/MB’s current address of record is 841 N 2nd Ave Unit 100, Phoenix, AZ 85003-1465.

On November 12, 2019, the Registrar received Medics’s Complaint against ME/MB’s license, which alleged that ME/MB owed Medics $6,575.00 a balance owed for materials and labor for Medics’s installation of a custom garage door and opener. Per the Invoice, the total charge for work Medics completed April 12, 2018, was $13,575.00. On February 26, 2018, ME/MB paid Medics $7,000.00 as a down payment which left a balance due and owing to Medics of $6,575.00.

On November 12, 2019, the Registrar received a Complaint from Medics against ME/MB’s license alleging that ME/MB owed $6,575.00 to Medics pursuant to the contracted work that Medics performed on a house at 2017 East La Vive Lane in Tempe, Arizona 85284 (“the project”).

On December 4, 2019, a correct copy and notice to ME/MB of the filing of the Complaint was mailed to ME/MB’s last known address of record with the ROC as follows: Malapai Enterprises Inc., d/b/a: Malapai Building, 841 N 2nd Ave Unit 100, Phoenix, AZ 85003.

On January 3, 2020, the Registrar issued a Citation and Complaint in this case against ME/MB, charging a violation of A.R.S. § 32-1154(A)(10). The Registrar mailed a copy of the Citation and Complaint to ME/MB at its address of record.

On January 21, 2020, the Registrar received Respondent’s written Answer to the Citation and Complaint containing a general denial of the allegations in the Complaint and further asserting an affirmative defense of misrepresentation. The Answer was timely filed.

The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing.

On February 8, 2020, the Registrar issued a Notice of Hearing setting a hearing on March 20, 2020, at 1:30 p.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record with the ROC.

Because of the unavailability of a central witness, Medics timely filed a Motion to Continue the March 20, 2020 hearing. The Motion having been granted, and in light of practices for social distancing recommended by the Arizona Department of Health Services and in Arizona Supreme Court Administrative Order No. 2020–48 related to the COVID-19 pandemic, Notice to each party at their address of record was mailed on March 27, 2020 setting this matter for a telephonic hearing before the OAH on May 8, 2020 at 1:00 PM.

A telephonic hearing was held on May 8, 2020 at 1:00 PM. Susan Martin and Candice Covington, Complainant Employees and Travis Rockley, Former Complainant Employee testified submitted exhibits.

Although the start of the duly noticed hearing was delayed twenty minutes. Respondent did not appear through an authorized officer, employee, agent or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. In the March 27, 2020 Order setting this telephonic Hearing, each party was ordered and directed to immediately provide OAH with a correct telephone number where each witness will be available to answer the ALJ’s telephone call on the date and time of the hearing. Additionally, the same Order directed that the parties “...shall not later than 2 business days before the hearing file all proposed exhibits electronically and provide copies to all other parties.” [emphasis in the original].

Medics promptly contacted OAH to provide and did provide correct telephone contact numbers for each of its three witnesses. ME/MB did not contact OAH to provide a contact number. Efforts by the ALJ, done on the record, to contact ME/MB at the telephone number found in its Answer to the Complainant and by search of ME/MB ROC official record, were met in the ALJ’s “hearing telephone call” with the call being transferred to voicemail. The male person on the voicemail recording identified himself as Jason Hoven, [an officer listed of record for ME/MB at the ROC offices] The ALJ left its recorded message advising that it was past time for the scheduled hearing and that ME/MB must call OAH within 15 minutes or else the hearing would proceed without ME/MB. Upon information and belief, no response to the ALJ’s call was ever responded to.

Moreover, the March 27, 2020 Order setting this matter for telephonic hearing Ordered “...each party shall not later than 2 business days before the hearing file all proposed exhibits electronically and provide copies to all other parties.” Medics timely filed a list of witnesses and copies of each of its intended exhibits.

Although the beginning of the duly noticed hearing was delayed fifteen minutes, it did not appear through an authorized member, employee, or attorney and did not contact the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed. Respondent presented no evidence at the hearing to defend its license.

Medics evidence and testimony established that both parties are ROC licensed contractors at all time relevant to these proceedings, that ME/MB contracted with Medics to provide material and labor for the Project for the total amount of $13,575.00 for which a ME/MB paid Medics $7,000.00 as a down payment leaving a balance due and owing to Medics of $6,575.00. After repeated demands, ME/MB has failed or refused to make payment as required by the parties’ contract. The amount remaining unpaid exceeds $750.00.

No evidence was offered to defend ME/MB’s license or to support ME/MB’s affirmative defense of misrepresentation.

Review of ME/MB’s ROC license record as of May 25, 2020 reveals that there are no prior ROC disciplinary actions s ME/MB’s license, that ME/MB’s bond is current and that ME/MB’s license status as of the date of this decision is current and active.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The notice of the hearing that the Registrar mailed to Respondent at its address of record and the address provided on its answer to the Citation and Complaint was reasonable and Respondent is deemed to have received the Notice of Hearing.

Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s licenses by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A supplier may pursue an administrative claim for nonpayment against a contractor’s license as well as a civil action for breach of contract or unjust enrichment in a judicial forum. The different remedies are not exclusive. The legislature has not empowered the Registrar or the Office of Administrative Hearings to award attorneys’ fees or general consequential or equitable damages that would be awardable in a civil court action. To the extent that either party is entitled to attorneys’ fees, interest, additional consequential damages or additional damages under equitable theories of quantum meruit or unjust enrichment, they should be free to pursue these remedies in the pending arbitration or in court.

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 . . . 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.” [Emphasis added.]. ME/MB has never asserted nor was any evidence offered that “the licensee ... lacks the capacity to pay...for the particular construction work project or operation for which the services or materials were rendered or purchased.”

ME/MB, a licensed ROC contractor has failed or refused to make payment to Medics in the amount of $6,575.00 for labor and materials ME/MB contracted for with Medics, an Arizona licensed ROC contractor. No allegation or proof that ME/MB

Medics has established by a preponderance of the evidence that ME/MB violated A.R.S. § 32-1154(A)(10).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Registrar suspend Respondent Malapai Enterprises Inc., d/b/a: Malapai Building’s License ROC175618 for Ten (10) days commencing on the effective date of this order.

IT IS FURTHER RECOMMENDED that no suspension take place if, on or before the effective date of the order, Respondent Malapai Enterprises Inc., d/b/a: Malapai Building furnishes proof in writing to the Registrar that it has paid Complainant $6,575.00 Upon such proof, the Registrar should then close this case.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.

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-137160-45720000Done this day, May 25, 2020.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000