ALJDEC decisions subject to certification as final

2020A-00596-NPC-ROC · Registrar of Contractors · 2020-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sandia General Contracting LLC,

COMPLAINANT

All Round Construction LLC,

License No. 154429,

RESPONDENT

No. 2020A-00596-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 13, 2020

APPEARANCES: Kenneth Montoya, Owner and Qualifying Party, appeared on behalf of Complainant Sandia General Contracting LLC. Jon Moody, Owner and Qualifying Party, appeared on behalf of Respondent All Round Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

All Round Construction LLC (Respondent) is the holder of License No. 154429 issued by the Registrar of Contractors (Registrar).

On or about January 31, 2020, Sandia General Contracting LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $11,897.42 for work performed.

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).

Kenneth Montoya testified that the total due to Complainant was $6,897.42. Mr. Montoya stated that Complainant ordered the tile for the job, including a 10 percent surplus, based on Respondent’s measurements. Mr. Montoya indicated that tile flooring was comprised of different sized tiles. According to Mr. Montoya, different sized tiles would sound differently when tested for hollowness. Mr. Montoya testified that an expert in the field noted that tiles should not be checked for hollowness for a week or two weeks. Accordingly, when Respondent tested the floors 12 to 36 hours of installation and purportedly found hollow tiles, Respondent checked too early to determine if there actually was an issue with the floors. Mr. Montoya maintained that when Respondent elected to remove and reinstall the floors, it did so prematurely and improperly. Mr. Montoya asserted that Complainant did the work properly and should be paid.

Jon Moody testified that Complainant provided a written contract only after the project had started as his normal course of business was to have verbal contracts with Complainant. Mr. Moody asserted that Complainant wasted a significant amount of tile through improper installation. Mr. Moody also stated that, of the three workers, Complainant had on the jobsite, none of them spoke English. Mr. Moody maintained that Respondent checked the tiles with a golf ball a week to a week and a half after the installation and discovered hollow spots. Mr. Moody admitted that Respondent did not file a workmanship complaint with the Registrar regarding the project. Mr. Moody acknowledged that Respondent owed and had attempted to pay Complainant the final amount due, according to Respondent, of $2868.97.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due or had not been paid sufficient monies as payment for 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 preponderance of the evidence presented established that Respondent owed a total of $6897.42 for work performed.

Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $6897.42 for services or materials 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 All Round Construction LLC’s License No: 154429 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $6897.42 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6897.42 in certified funds, the Registrar may close the Complaint in Case No. 2020-00596.

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, June 1, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000