ALJDEC decisions subject to certification as final

2020A-01105-NPC-ROC · Registrar of Contractors · 2020-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

LeSueur Plumbing LLC,

COMPLAINANT

Cavcon Builders LLC,

License No. ROC 263186,

RESPONDENT

No. 2020A-01105-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 28, 2020

APPEARANCES: Brian LeSueur, Owner, appeared on behalf of Complainant LeSueur Plumbling LLC and was represented by Jason Venditti. James Caviness, Principal, appeared on behalf of Respondent Cavcon Builders LLC and was represented by Chase Halsey.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Cavcon Builders LLC (Respondent) is the holder of License No. 263186 issued by the Registrar of Contractors (Registrar).

On or about March 18, 2020, LeSueur Plumbing LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum total of $38,383.00 for services performed on three different projects for Respondent.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for an alleged violation of A.R.S. § 32-1154(A)(10).

The three projects at issue were known as Filibertos Avondale, Filibertos Buckeye, and Ultra Suds. Complainant was to perform plumbing work on the projects.

On or about April 22, 2020, counsel for Respondent sent Complainant’s counsel a letter outlining the back charges Respondent believed were appropriate on the three projects including payments to Wyman Plumbing and general conditions delays Respondent asserted were attributable to Complainant. Respondent asserted it incurred expenses totaling $39,085.00 to correct and/or complete Complainant’s scope of work.

On or about May 7, 2020, counsel for Complainant replied indicating that such general construction delays could not be attributable solely to Complainant and would not serve as the basis for a defense for the no pay complaint filed by Complainant.

Mr. LeSueur testified that the total due to Complainant was $38,383.00. Mr. LeSueur asserted that Complainant performed all the work required under the contract and the work passed inspection. Mr. LeSueur denied that Complainant caused any delays on the project and stated Respondent never informed him that Complainant did not complete its work on time. Mr. LeSueur indicated that Respondent was not back-charged on any of the projects.

Mr. Caviness testified that Respondent had to hire a different plumbing contractor, Wyman, to complete the work Complainant failed to perform or performed improperly. Mr. Caviness argued that the back charges paid to Wyman exceeded the amount Complainant asserted it was owed on the contracts. Mr. Caviness testified as to the work under the contracts done by Wyman that should have been done by Complainant. Mr. Caviness stated that Respondent was not back charged on the projects because Respondent carried the loss as a reduction in profitability of the projects.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due or had not been paid on the projects 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 asserted it had to hire Wyman to perform the work on the projects that should have been done timely by Complainant, Respondent did not present any evidence to support its assertions other than the self-serving statements of Mr. Caviness. While Respondent may have a bona fide contractual dispute with Complainant, Respondent did not prove such a dispute existed during the hearing.

Accordingly, the evidence established that Respondent owed Complainant a total of $38,383.00 for the work it performed.

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 paid sufficiently on the project to pay Complainant the amount owed.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $38,383.00 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 Cavcon Builders LLC’s License No: 263186 until Respondent has provided documents to the Registrar, and the Registrar has accepted, which establishes that Respondent has paid Complainant $38.383.00 in certified funds.

It is further recommended that once the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $38.383.00 in certified funds, the Registrar close Complaint No. 2020-01105.

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, August 17, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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