ALJDEC decisions subject to certification as final

2020A-00622-NPC-ROC · Registrar of Contractors · 2020-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sun Valley Floor Specialists LLC,

COMPLAINANT

Touhey's Custom Carpentry LLC,

License No. ROC 306266,

RESPONDENT

No. 2020A-00622-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 11, 2020.

APPEARANCES: Edgar Verduzco appeared telephonically on behalf of Sun Valley Floor Specialists LLC, Complainant. Eric Touhey appeared telephonically on behalf of Touhey's Custom Carpentry LLC, Respondent.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about June 27, 2016, the Arizona Registrar of Contractors (Registrar) issued License No. 306266 for Specialty Dual CR-61 Carpentry, Remodeling, and Repairs to Touhey's Custom Carpentry LLC (Respondent). Eric Gerard Touhey is listed as the Qualifying Party and Member. The address of record for the license is 3018 East Mabel Street, Tucson, Arizona 85716.

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website June 11, 2020.

Regarding ROC License No. 306266, such prior license record reflects that Respondent’s license is active and currently renewed through June 30, 2022. The license has been previously disciplined on one occasion and one resolved/settled case. The record also reflects that there is one open complaint against the license, one which is presumed to be related to this matter. Respondent has an active $6,750.00 surety bond for the license issued through RLI Insurance Company, effective May 12, 2016.

On or about February 5, 2020, the Registrar received a Non-Payment Complaint Form (Complaint) from Sun Valley Floor Specialists LLC (Complainant) alleging nonpayment of services against Respondent. The Registrar designated it Complaint No. 2020A-00622 and assigned the case to Marcy Bernasconi in their legal department for investigation.

On March 30, 2020, the Registrar issued a Citation to Respondent for an alleged violation of Ariz. Rev. Stat § 32-1154(A)(10). Respondent was notified that a failure to provide an Answer by April 14, 2020, would be deemed as an admission of Respondent’s commission of the act(s) charged in the underlying complaint, pursuant to Ariz. Rev. Stat § 32-1155(B), and could result in discipline against Respondent’s license including suspension or revocation.

On April 14, 2020, the Registrar received Respondent’s Answer. In its Answer, Respondent alleged that it had not paid Complainant due to unprofessional workmanship, incompletion of work, and damages. Respondent attempted to contact Complainant to complete the job to no avail. Respondent requested the ROC to inspect the incomplete work.

On April 15, 2020, this matter was referred to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing on June 11, 2020.

On or about May 11, 2020, the Registrar issued a Notice of Hearing. Per the Notice of Hearing, the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charge(s) alleged in the Citation and Complaint:

Charge 1: A violation of A.R.S. § 32-1154(A)(10).

Hearing Evidence

Complainant was represented by Edgar Verduzco who testified on his own behalf. Respondent was represented by Eric Touhey who testified on his own behalf.

Mr. Verduzco testified that on or about October 15, 2019, Complainant contracted with Respondent to install flooring at 4419 North Ocotillo Canyon Drive, Tucson, AZ 85750. The contract amount was $10,000.00.

On or about October 29, 2019, Complainant contracted with Respondent to polish the concrete at 3342 East Pima Street, Tucson, AZ 85716. The contract amount was $13,800.00.

Complainant received $14,000.00 in deposit money from Respondent for both projects. In November 2019, Respondent owed Complainant $4,000.00. Both parties agreed that Complainant would finish all outstanding work and Respondent would pay the remaining balance.

On or about November 20, 2019, Complainant completed both projects. Respondent failed to pay Complainant a remaining balance of $3,600.00.

Mr. Verduzco testified that when he left both properties, the floors were completed according to the clients’ satisfaction, the floors were new, and the floors were in great condition. He repaired any and all mistakes that were brought to his attention. Mr. Verduzco argued that Complainant was not liable for any damages that occurred as a result of Respondent’s actions after Complainant finished the work.

Mr. Touhey testified that Complainant was contracted to do the flooring in two different properties. Mr. Touhey acknowledged that he did not pay Complainant the remaining balance because Complainant completed the work on a subpar level of workmanship, professionalism, and quality control. Complainant’s failure to complete the project correctly resulted in various damages to the floor. Not only were the floors of poor quality when they were installed, the floors were poorly installed. Any damages that occurred were due to Complainant’s workmanship and materials, not due to additional work done at the premises.

Mr. Touhey argued that Respondent was financially responsible for correcting Complainant’s poor workmanship and wanted to use the remaining balance to pay another contractor to fix the floors. He did not want Complainant back on the property to fix any of the damages.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction and has been properly brought before the Office of Administrative Hearings for adjudication.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Unless otherwise provided by law, 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.

“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.”

Statutes should be interpreted to provide a fair and sensible result. Statutes shall be liberally construed to affect their objects and to promote justice.

Ariz. Rev. Stat. § 32-1154(A)(10) holds, in pertinent part, that among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] 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, 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.”

Ariz. Rev. Stat. § 32-1156.01 states, in pertinent part, that after a hearing an Administrative Law Judge may provide restitution to any person who is injured by an action of a licensee.

The material facts in this case are not in dispute. Complainant and Respondent entered into contract whereby Complainant was to install flooring and/or concrete polish to two different properties. Complainant completed the work and had a remaining balance owed by Respondent of $3,600.00.

The evidence showed that Complainant filed a Complaint after Respondent failed to pay it for the work completed. Respondent argued that Complainant should not be paid due to poor workmanship issues. The Complaint filed by Complainant was for non-payment.

Therefore, the only issue remaining is whether Respondent raised a sufficient justification or excuse for failing to issue payment to Complainant on the underlying project. This is an affirmative defense that Respondent bears the burden to establish. Respondent acknowledged that it did not pay Complainant because of workmanship issues. There was no Licensed Complaint Form filed for poor workmanship and thus workmanship was not at issue. Thus, Respondent did not provide a sufficient affirmative defense and did not sustain its burden of proof. The credible evidence of record shows that Respondent failed to pay Complainant for services rendered and had no affirmative defense(s) for doing so.

Because Complainant established by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10), Complainant also established cause for the Registrar to discipline Respondent’s contractor’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, Respondent’s, Touhey's Custom Carpentry LLC, License No. 306266 shall be suspended until Respondent provides the Registrar with proof that $3,600.00 has been tendered to Complainant in certified funds as restitution.

After the Registrar has received Respondent’s proof of payment to Complainant, Complaint 2020A-00622 may be closed.

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.

Done this day, June 25, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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