ALJDEC decisions subject to certification as final

2020A-04415-NPC-ROC · Registrar of Contractors · 2020-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Painting Solutions Incorporated

COMPLAINANT

Gallagher Contracting and Design LLC

License No. 327536,

RESPONDENT

No. 2020A-04415-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 14, 2020

APPEARANCES: Nicolas Aguilar and Cecilia Guerrero appeared via Google Meet on behalf of Complainant Painting Solutions Incorporated.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Gallagher Contracting and Design LLC (Respondent) is the holder of License No. 327536 issued by the Registrar of Contractors (Registrar).

On or about September 14, 2020, Painting Solutions Incorporated (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $4,957.00 for painting on the Whitner residence.

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) on October 2, 2020.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on December 14, 2020. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

A hearing was held on December 14, 2020. Nicolas Aguilar and Cecilia Guerrero testified on behalf of Complainant and also presented the testimony of two witnesses, namely, Joseph Serrano and Luthen Gonzalez.

Nicolas Aguilar testified that there was a verbal agreement as well as confirming text messages that Respondent agreed to hire Complainant for painting the Whitner residence. Mr. Aguilar testified that worked commenced on June 29, 2020, and took about four weeks to complete the project.

Mr. Aguilar further testified that he had worked with Respondent on two prior projects in the same manner and received payment for those projects.

Finally, Mr. Aguilar testified the total due to Complainant was $4,957.00. He further testified that once the invoice was presented, Respondent failed to pay and failed to respond to phone calls, emails and text messages.

Cecilia Guerrero who is the co-owner and office manager for Complainant testified that prior to submitting the invoice, she spoke with Alexis Gallagher informing her that an invoice would be forthcoming. Ms. Guerrero testified that Ms. Gallagher assured payment.

Ms. Guerrero testified that on August 4, 2020, she sent the invoice via e-mail to Respondent. Ms. Guerrero further testified that on August 24, 2020, she e-mailed Respondent to follow up on payment. Ms. Guerrero testified that she was informed that the check was in the mail.

Next, Ms. Guerrero testified that on August 27, 2020, she sent another follow up e-mail to Respondent however, received no response thereto.

Ms. Guerrero then testified that on September 4, 2020, she sent a certified letter to Respondent reiterating that payment was due. Ms. Guerrero testified that there was yet again no response to this letter.

Joseph Serrano testified that Complainant completed the work and never got paid. He further testified that he worked there about a month and not only used the spray gun to pain but also used a brush and roll.

Luthen Gonzalez testified that he was on the jobsite re-painting the interior for the third or fourth time. He further testified that he believed that the homeowners were unhappy with the project because of the delays and “screw-ups” from Respondent. Mr. Gonzalez further testified that he had not received payment from Respondent either for his portion of the contracted work.

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

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 evidence established that Respondent owed a total of $4,957.00 for the work performed on the Whitner residence.

Respondent failed to appear and thus 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 $4,957.00 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 Gallagher Contracting and Design LLC’s License No: 327536 issued by the Registrar, until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $4,957.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $4,957.00 in certified funds, the Registrar may close the Complaint in Case No. 2020-04415.

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 30 days from the date of the certification.

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-137160-45720000Done this day, December 18, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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