ALJDEC decisions subject to certification as final

2020A-05302-NPC-ROC · Registrar of Contractors · 2021-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

A&CC Remodeling LLC,

COMPLAINANT

Wade Jay Cline,

DBA: Clines Natural Stone Company,

License No. ROC 303648,

RESPONDENT

No. 2020A-05302-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 24, 2021

APPEARANCES: Christian Castellon appeared via Google Meet on behalf of Complainant A&CC Remodeling, LLC. Wade Jay Cline appeared via Google Meet on his own behalf.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

On April 14, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 24, 2021 at the Office of Administrative Hearings.

The Notice of Hearing shows that the hearing was being conducted on the charges made in the complaint and citation that were served on Respondent Wade Jay Cline on December 2, 2020.

Through the citation and Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds License No. 303648 issued by ROC. Wade Jay Cline is Respondent’s qualifying party and an officer in the corporation.

Complainant is A&CC Remodeling, LLC.

On or about June 30, 2020, while Respondent was working on a flooring project for a homeowner, Respondent suggested the homeowner use the services of Complainant to hang drywall and prepare the same for painting.

After some delays, and once the project was completed, Complainant requested that Respondent pay $7,000.00 for the work performed. Respondent made three payments totaling $5,000.00 but refused to pay the remaining balance.

On November 19, 2020, Complainant filed with ROC a complaint against Respondent alleging that Respondent owed Complainant $2,000.00.

At the hearing, Respondent testified that he was not a general contractor and simply made a recommendation to the homeowner to use Complainant for the drywall.

Respondent testified that he worked with Complainant on numerous jobs and has never had a contract. He testified further that sometimes he paid Complainant directly and sometimes the homeowner would pay Complainant.

In addition, Respondent testified that he was informed by the painters on the project that the drywall was not acceptable to be painted as the texture was uneven, and the corners were so rough that they could not be caulked. Respondent testified that because of this, he and his son spent 30 hours correcting Complainant’s mistakes.

Respondent testified also that while he did not get paid from the homeowner on the job, he believed that paying $5,000.00 to Complainant was morally correct.

Mr. Castellon testified simply that he did a job and did not get paid.

Mr. Castellon testified that Respondent contacted him for the job, and it was hard to give a price for the work prior to commencing the job.

Mr. Castellon further testified that they hung 38-40 sheets of drywall and spent over 330 hours on the project. He also testified that he paid his workers out of his own pocket because he had not been fully paid.

Mr. Castellon stated that because of the age and condition of the walls, the drywall was going to be wavy and show imperfections.

Mr. Castellon testified that Respondent informed him that he was satisfied with the work.

CONCLUSIONS OF LAW

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. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

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 or, 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. § 32-1154(A)(10).

In this case it is quite difficult to discern if this is even the proper venue for this dispute. While Respondent made the initial call to Complainant to arrange for the work, it was nearly impossible to discern from the evidence presented if there was a “meeting of the minds” for who was to pay Complainant on this project. From the parties’ testimony, their course of dealings in the past demonstrate no conclusive arrangement for payment.

Respondent was persuasive in testifying that he believed the morally correct thing was to pay Complainant for some of the work performed. The Tribunal believes that this was also because of their past relationship and the hopes that both parties would continue to refer clients to the other. Further upon review of ROC’s website, Respondent’s license is limited to Specialty Dual CR-48 Ceramic, Plastic and Metal Tile. See https://roc.az.gov/contractor-search?Id=a0ot0000000NbMQAA0. Thus, Respondent was barred from acting a general contractor on this job.

Therefore, the preponderance of the evidence shows that Respondent has not violated section 32-1154(A)(10). This is not to say that Complainant may not have a cause of action in a different forum. However, for the purposes of this venue, the Tribunal believes that there was no agreement for Respondent to pay Complainant for its services.

/ / /

RECOMMENDED ORDER

IT IS RECOMMENDED that the complaint against Wade Jay Cline’s license number 303648 be dismissed.

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 thirty days after the date of that certification.

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Done this day, June 2, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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