ALJDEC decisions subject to certification as final

2020A-01309-NPC-ROC · Registrar of Contractors · 2020-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mike's Countertops, Inc.,

COMPLAINANT

Old World Craftsmen, LLC,

License No. 280264,

RESPONDENT

No. 2020A-01309-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 29, 2020

APPEARANCES: Mike Myers, President/Owner of Complainant Mike’s Countertops, Inc. Lucinda Griffin, Owner/Managing Member of Respondent Old World Craftsmen, LLC.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

1. Old World Craftsmen LLC (Respondent) is the holder of License No. 280264 issued by the Registrar of Contractors (Registrar).

2. On or about March 13, 2020, Mike’s Countertops, Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $5,085.00 for the fabrication and installation of countertops.

3. 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).

4. Mike Myers, Complainant’s owner, testified that in the beginning of July 2019, Rob Griffin, an employee of Respondent, contacted him to perform a “rush job” in Pinetop, Arizona. Mr. Myers stated that the contract was a verbal contract and credibly testified that he has been doing business with Respondent, with Mr. Griffin as its representative, for four years. Mr. Myers further testified that Complainant fabricated the countertops from material that had been delivered to Complainant’s place of business by Arizona Tile. The countertops were fabricated and then installed on July 9, 2019, at the address of 7828 Buck Springs Road in Pinetop, Arizona. Mr. Myers credibly testified that Mr. Griffin told Mr. Myers that he was very happy with the work and thanked him for completing the job so quickly. Mr. Griffin told Mr. Myers that he was waiting on a construction draw in order to pay Complainant.

5. Mr. Myers submitted into evidence photocopies of text messages between himself and Mr. Griffin relating to the job at issue. See Exhibit 1 (pages 8-12 of Administrative Record). On August 8, 2019, Mr. Griffin texted Mr. Myers, “I’m sorry about the slow payment. Don’t worry. Draw has not come yet but it will.” Id. On September 10, 2019, Mr. Myers texted Mr. Griffin saying, “Rob we need to get paid. It has been 60 days.” Id. On October 9, 2019, Mr. Myers texted Mr. Griffin, “Did you mail the check?” Id. On October 21, 2019, Mr. Myers texted Mr. Griffin, “I still have not received the check.” Id. On October 22, 2019, Mr. Myers texted Mr. Griffin, “I did not get the check. Can you deposit it into my Wells Fargo account please.” Id. Mr. Myers provided within the text to Mr. Griffin Complainant’s bank account and routing numbers, along with the $5,085.00 amount owed. Id. On that same date, Mr. Griffin replied, “Got it,” with a “thumbs up” emoji. Id. Still, not having received payment, and after numerous discussions, on December 12, 2019, Mr. Myers texted Mr. Griffin, “Rob, I never heard back from you on the payment plan schedule. Please advise.” Id.

6. Lucinda Griffin, Respondent’s owner and managing member, testified that she has no record of any contract with Complainant in regard to this particular job and that she always has written contracts. Ms. Griffin contended that she “does not feel” there is a basis for payment without a written contract.

CONCLUSIONS OF LAW

1. 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.

2. 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).

3. 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.

4. Respondent’s only argument was that there was not a written contract and therefore, Complainant was not entitled to payment. Respondent acknowledged that Mr. Griffin is one of Respondent’s employees and that Respondent had contracted with Complainant for past jobs. Ms. Griffin did not dispute at hearing that the work was performed by Complainant and did not allege any issues with workmanship. The Administrative Law Judge concludes, based upon the credible evidence presented at hearing, that Respondent owes Complainant a total of $5,085.00 for the fabrication and installation of countertops at 7828 Buck Springs Road in Pinetop, Arizona.

5. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the fabrication and installation of countertops at 7828 Buck Springs Road in Pinetop, Arizona, or had not received sufficient monies as payment for the project at issue to pay Complainant.

6. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $5,085.00 for services rendered in connection with Respondent’s contracting business.

7. 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 Respondent’s License No. 280264 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $5,085.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $5,085.00 in certified funds, the Registrar may close the Complaint in Case No. 2020-01309.

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 13, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000