ALJDEC decisions subject to certification as final

2020A-02023-NPC-ROC · Registrar of Contractors · 2020-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Integrity Glass Solutions LLC,

COMPLAINANT,

v.

Green Street Communities Inc.,

License No. ROC 282770,

RESPONDENT.

No. 2020A-02023-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 29, 2020 at 9:00 AM.

APPEARANCES: Armando Chavez appeared on behalf of Integrity Glass Solutions LLC (“Complainant”). No appearance(s) by or on behalf of Green Street Communities Inc. (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On December 24, 2012, the Registrar issued ROC License No. 282770 for general KB-1 dual building contracting to Respondent. Derek Benjamin Jarr is listed on the license as the Officer. The address of record for the license is 4203 E. Indian School Rd. Phoenix, Arizona 85018.

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license files as shown on the Registrar’s public website July 29, 2020.

Regarding ROC License No. 282770, such prior license record reflects that Respondent’s license is active and currently renewed through December 31, 2020. The license has been disciplined on 2 prior occasions, and the record reflects that 3 prior cases have been resolved or otherwise settled with the license. The record also reflects that there are 4 open complaints against the license; one of which is presumed to be related to this matter. Respondent has a cancelled $20,000.00 surety bond for the license which had been issued through Western Surety Company. The bond was cancelled on July 18, 2020.

On April 21, 2020, the Registrar received a complaint from Complainant alleging nonpayment of $1,787.50 in services and/or materials against Respondent. The Registrar designated it Complaint No. 2020-02023 and assigned the case to Doug Ulmer in their legal department for investigation.

On April 24, 2020, the Registrar informed Complainant that it had submitted the incorrect complaint form and requested that Complainant resubmit the complaint using the proper form no later than May 04, 2020.

On April 30, 2020, the Registrar received a complaint addendum from Complainant alleging an additional nonpayment of $800.00 in services and/or materials against Respondent.

On May 04, 2020, the Registrar issued a Notice of No Pay Complaint letter to Respondent providing notice of Complainant’s complaint, and informed Respondent that it was free to raise any affirmative defense(s) or provide additional information by May 11, 2020. No response from Respondent was received by the Registrar.

On May 13, 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 May 28, 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 May 28, 2020, the Registrar received Respondent’s Answer. In its Answer Respondent stated that it “disagreed” with Complainant that it owed an outstanding balance of $2,585.00, and that it hoped to resolve the matter with Complainant.

On June 03, 2020, this matter was referred to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on July 29, 2020. 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:

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

Hearing Evidence

Armando Chavez testified on behalf of Complainant. The Notice of Hearing and Registrar’s agency file were also admitted into the record as their own exhibits. Although the Tribunal afforded Respondent a 15-minute grace period, there was no appearance by or on behalf of Respondent. The substantive facts of record are as follows:

Complainant is a residential glass shower subcontractor.

Respondent is a general contractor.

The parties had a professional relationship whereby Respondent would ask Complainant to complete residential glass shower installations. Complainant and Respondent had a Net-30 payment agreement on all of their contracts. Specifically, Respondent agreed to pay Complainant a 50% down payment on their contract, and further agreed to pay the remaining outstanding balance no more than 30-days after Complainant issued the subsequent invoice.

There are unpaid 2 invoices at issue in the case at bar: Invoice Nos. 1279 and 1249.

On or about October 29, 2019, the parties entered into a contractual agreement whereby Respondent agreed to pay Complainant the sum total of $3,575.00 in exchange for the installation of glass shower doors on a residential project located at 4156 N 33rd Place Phoenix, AZ 85018.

On or about November 07, 2019, the parties entered into a second contractual agreement whereby Respondent agreed to pay Complainant the sum total of $1,600.00 for the installation of glass shower doors on a residential project located at 4412 E Marion Way Phoenix, AZ 85018.

On November 07, 2019, Respondent tendered a payment of $800.00 to Complainant, and work on the Marion Way project commenced.

On November 07, 2019, work on the Marion Way project was completed.

On November 07, 2019, Complainant issued Invoice No. 1249 for the Marion Way project to Respondent for $800.00.

On November 11, 2019, Respondent tendered a payment of $1,787.50 to Complainant, and work on the 33rd Place project commenced.

On December 07, 2019, work on the 33rd Place project was completed.

On December 10, 2019, Complainant issued Invoice No. 1279 for the 33rd Place project to Respondent for $1,787.50.

After the expiration of 30-days from the dates Invoice Nos. 1279 and 1249 were issued to Respondent, Complainant reached out to Respondent to inquire about payment of the $2,587.50 total outstanding balance. Respondent told Complainant that it was “having some issues” and asked Complainant to wait.

No payment(s) towards to total amount owed were ever received by Complainant.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction and has been properly brought before OAH for adjudication.

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

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.

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 matter are not in dispute.

Here, it is undisputed that the parties entered into contracts on October 29, 2019, and November 07, 2019, for the sum total of $5175.00, and that Respondent issued down payments to Complainant totaling $2,587.50. It is further undisputed that the work on each project was completed. Moreover, it is undisputed that Respondent owes Complainant an outstanding balance of $1,787.50 on the 2 contracts.

Therefore, the only issue remaining is whether Respondent raised a sufficient justification or excuse for failing to issue payment to Complainant on the underlying projects. This is an affirmative defense that Respondent bears the burden to establish. Because Respondent failed to appear and provide testimony, this burden has not been sustained. The credible evidence of record shows that Respondent failed to promptly and completely pay Complainant for labor and/or materials on this project, 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 Green Street Communities Inc., ROC License No. 282770, shall be suspended until Respondent provides the Registrar with proof that $1,787.50 has been tendered to Complainant in certified funds as restitution. After the Registrar has received Respondent’s proof of payment to Complainant, Complaint 2020-02023 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, July 29, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors