ALJDEC decisions subject to certification as final

2020A-00334-NPC-ROC · Registrar of Contractors · 2020-06-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Frias Pool Repair LLC,

COMPLAINANT,

Best Deal Landscaping LLC,

DBA: Best Deal Custom Pools & Landscape,

License No. 312224, 293625,

RESPONDENT.

No. 2020A-00334-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 14, 2020

APPEARANCES: Jessica Preciado appeared on behalf of Complainant Best Deal Landscaping, LLC. Taylor W. Tondevold, Esq. appeared on behalf of Respondent Frias Pools Repair, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Frias Pools Repair, LLC (Frias) holds license numbers

312224 and 293625, issued by the Arizona Registrar of Contractors (Registrar).

Frias and Complainant Best Deal Landscaping, LLC (Best Deal) entered

into an agreement wherein Best Deal would install pools at various residences.

On or about January 27, 2020, the Registrar received a complaint from Best

Deal alleging that Frias failed to pay Best Deal the amount of $18,520 for materials and services rendered in connection with pool installations.

Best Deal submitted several invoices with its complaint. Most of the invoices

show that Frias Pools was billed based on an internal area measurement calculation (IA) of the pool, multiplied by $3.40.

On or about February 6, 2020, the Registrar, issued a Citation against

Frias Pools for an alleged violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).

Frias Pools filed a timely response to the Citation. In its response, Frias

Pools alleged that Best Deal overcharged Frias Pools and breached their original agreement.

The Registrar referred the matter to the Office of Administrative Hearings,

(OAH) an independent agency, to schedule an evidentiary hearing. On April 14, 2020, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on May 14, 2020, at the OAH in Phoenix, Arizona.

6. A hearing was held on May 14, 2020.

7. Best Deal presented the testimony of Jesus Orozco. Frias Pools presented the testimony of Dennis DeCarmine and Brad Bolin.

8. Mr. Orozco originally testified that Best Deal and Frias Pools agreed that

Best Deal would be paid based on the perimeter of the pool. Later in the hearing,

Mr. Orozco testified that Best Deal and Frias Pools agreed that Best Deal would be paid based on the IA of the pool multiplied by a rate of $3.25. Mr. Orozco testified that later, he increased the price to $3.40 and Frias Pools agreed to the new rate. Mr. also testified that he began charging a minimum of 750 IA.

9. Mr. DeCarmine explained that the payment is based on the IA because the

IA is used to obtain the bid for the pool. Frias Pools contended that Best Deal overcharged Frias Pools in the amount of $8,889.25. Frias Pools contended that it is owed money because Frias Pools paid money in excess than the amount owed because the IA calculation was not correct. Mr. DeCarmine submitted exhibits which showed the cad drawings for several pools. According to the cad drawings, the IA of the pools was far less than the IA measurements listed on the invoices. See Respondent’s Exhibits 1 through 29.

10. Mr. Bolin explained that he is an Autocad Draftsman. Mr. Bolin has completed work for Frias Pools. Mr. Bolin explained that most pool trades charge in an amount equal to the IA of the pool multiplied by a set dollar amount, not by perimeter.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

2. A party asserting a claim, right, or entitlement bears the burden of proof; a

party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

3. A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

4. Statutes should be interpreted to provide a fair and sensible result.

Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.")

5. “Statutes shall be liberally construed to effect their objects and to

promote justice.” A.R.S. § 1-211(B).

6. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

7. A.R.S. § 32-1154(A) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: .... 10. Failure 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..... 12. Failure in any material respect to comply with this chapter.

8. The preponderance of the evidence does not show Best Deal issued invoices to Frias Pools with correct IA calculations. Furthermore, the preponderance of the evidence does not show that Frias Pools agreed to be billed at the higher rate of $3.40 per square foot.

9. The preponderance of the evidence does not show that Frias Pools owed Best Deal $18,520.

10. The preponderance of the evidence does not show that Frias Pools failed to pay monies in excess of seven hundred and fifty dollars when due for materials for services rendered to Frias Pools.

11. The preponderance of the evidence does not show that Frias Pools violated A.R.S. §32-1154(A)(10) as alleged.

ORDER

IT IS ORDERED that the Citation and Complaint in Case No. 2020A-00334 dismissed.

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, June 3, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000