ALJDEC decisions subject to certification as final

2020A-00039-NPC-ROC · Registrar of Contractors · 2020-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

D&B Elite Carpentry LLC,

COMPLAINANT

G & T Custom Homes LLC,

License No. 277893,

RESPONDENT

No. 2020A-00039-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 30, 2020, and July 9, 2020

APPEARANCES: Richard DePhillips, Owner and Qualifying Party, appeared on behalf of Complainant D&B Elite Carpentry LLC and was represented by Darren Holmes. Tom Gerardi, Qualifying Party, appeared on behalf of Respondent G & T Custom Homes LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

G & T Custom Homes LLC (Respondent) is the holder of License No. 277893 issued by the Registrar of Contractors (Registrar).

On or about December 30, 2019, D&B Elite Carpentry LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $17,850.00 for services provided.

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).

Richard DePhillips testified that the total due to Complainant was $17,850.00. Mr. DePhillips indicated that the agreement was a time and materials contract for six different jobsites. Mr. DePhillips testified as to how him employees were paid, that is, at an hourly rate with an unpaid lunch hour. Mr. DePhillips acknowledged that the timesheets may not reflect time off for a lunch hour, but asserted that the employees would account for the lunch hour in the time listed. That is, if the employee worked from 7:00 a.m. to 3:00 p.m. with a one hour lunch, the employee would write 7:00 a.m. to 2:00 p.m. on the timesheet. Mr. DePhillips indicated that if employees were working on more than one job during a day, the travel time between jobs was also split between the jobs. Mr. DePhillips stated that he did provide a discount to Respondent of 30 hours of labor as a gesture of good will because he understood some employees may not be as productive as other employees and he took that into account. Mr. DePhillips stated that he had not been informed of any workmanship concerns until the parties participated in an informal settlement conference related to this matter. Mr. DePhillips asserted there was no reason for Respondent not to pay Complainant.

Darryl Jones, and employee of Respondent, testified that Respondent had not paid any of the invoices from Complainant, but it intended to pay the correct amount. Mr. Jones asserted that Mr. DePhillips was never on the jobsites to provide oversight. Mr. Jones alleged that Complainant’s employees’ time reflected on the timesheets was not accurate and did not show a lunch hour or travel time between jobs. Mr. Jones also argued that some timesheets indicated a starting time of 6:00 a.m., but work was not allowed to start that early in the day in that community. Mr. Jones presented a spreadsheet with Respondent’s calculations as to the correct charges it should have been charged and determined it owed Complainant $5,344.00.

Mr. Gerardi also testified as to Mr. DePhillips lack of supervision on the job that resulted in workmanship issues.

Respondent also asserted that the nature of Complainant’s license meant it was not allowed to have employees and therefore, it should not be required to pay if the workers were, in fact, employees of Complainant.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due or that Respondent had not been paid at least $17,850.00 on the six jobs at issue.

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.

While Respondent presented its alternative calculations as to the amount it owed Complainant, Respondent did not present any substantive evidence to support its assertions. Further, Respondent acknowledged it owed Complainant at least $5,344.00, which is far more than the threshold requirement to find a violation of A.R.S. § 32-1154(A)(10).

The preponderance of the evidence established that Respondent owed a total of $17,850.00 for services provided by Complainant.

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 been at least $17,850.00 on the six jobs.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $17,850.00 for services rendered in connection with Respondent’s contracting business.

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

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend G & T Custom Homes LLC’s License No: 277893 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $17,850.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $17,850.00 in certified funds, the Registrar may close the Complaint in Case No. 2020-00039.

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.

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-137160-45720000Done this day, July 29, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000