ALJDEC decisions subject to certification as final

2021A-00668-NPC-ROC · Registrar of Contractors · 2021-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Desert Mountain Electric LLC,

COMPLAINANT

Stellar Contracting LLC,

License No. ROC 321408,

RESPONDENT

No. 2021A-00666-NPC-ROC

No. 2021A-00667-NPC-ROC

No. 2021A-00668-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 7, 2021

APPEARANCES: Jay Clark for Complainant; William Kozub, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 2, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Consolidated Hearing on Contested Case setting the above-captioned matter for hearing on May 7, 2021 at the Office of Administrative Hearings.

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

Respondent holds License No. 321408 issued by ROC. Lou Grenier is Respondent’s co-owner.

Complainant is Desert Mountain Electric LLC. Jay Clark is Complainant’s owner and qualifying party.

On February 16, 2021, Complainant filed with ROC three complaints against Respondent, alleging in each case that Respondent owed Complainant money for electrical contracting work that Complainant performed for Respondent.

In docket number 2021A-00666-NPC-ROC, Complainant alleges that Respondent owes it $4105 for work performed at a project at 40309 North 10th Street in Phoenix.

In docket number 2021A-00667-NPC-ROC, Complainant alleges that Respondent owes it $2608.80 for work performed at 48451 North 13th Avenue in New River.

In docket number 2021A-00668-NPC-ROC, Complainant alleges that Respondent owes it $6650 for work performed at 25819 North 8th Avenue in Phoenix.

Respondent asserts that Complainant’s work in the 666-matter and the 667-matter was incomplete and otherwise deficient, and consequently, the amounts Complainant alleges Respondent owes are not due to Complainant.

In the 668-matter, Complainant agreed with the homeowner to perform work that was not part of its contract with Respondent, but did not secure Respondent’s approval for that work. Consequently, Respondent argues that it is does not owe Complainant for that extra work.

Complainant’s license was suspended in July 2020 and not reinstated until February 2021.

Respondent did not learn that Complainant’s license had been suspended until sometime in January 2021.

After Respondent learned that Complainant’s license was suspended and Mr. Clark stopped communicating with Respondent, Respondent informed Mr. Clark that it intended to hire another contractor to finish the work. Respondent hired Copperline Electric to complete the unfinished and deficient work.

2021A-00666-NPC-ROC

Complainant was hired by Respondent to perform electrical work at 40309 North 10th Street in Phoenix. Complainant’s estimate for $20,150 was dated May 6, 2020.

On September 2, 2020, Complainant submitted to Respondent an invoice for $14,105 covering the “70% draw for rough,” and showing Respondent had paid Complainant $10,000, leaving a balance due of $4015.

Mr. Grenier’s recollection was that the $10,000 was paid in advance and he had heard that Complainant needed the money for payroll.

Mr. Grenier testified that Complainant’s work was not complete and was inadequate in other ways. Some of these deficiencies were not discovered until the “hot check” after power was hooked up.

The parties exchanged text messages in which Complainant acknowledged that its work was not complete and to the effect that Complainant would finish its work.

Complainant did not finish its work.

Respondent paid to Copperline Electric LLC a total of $6300 to make the required corrections and complete Complainant’s work.

2021A-00667-NPC-ROC

Complainant was hired by Respondent to perform electrical work at a house at 48451 North 13th Avenue in New River.

Mr. Clark acknowledged that Respondent performed the work at issue while its license was suspended.

On December 14, 2020, Complainant submitted to Respondent an invoice for the final draw of $2608.80 for the trim work.

The parties exchanged text messages in which Complainant acknowledged that the work was not complete and to the effect that Complainant would finish its work.

Complainant did not finish its work.

Respondent paid Copperline Electric $4600 to complete or correct Complainant’s work.

2021A-00668-NPC-ROC

Complainant was hired by Respondent to perform electrical work at a house at 25819 North 8th Avenue in Phoenix.

On December 9, 2020, Complainant submitted to Respondent an invoice for $6650 for “EXTRAS.”

Complainant’s invoice included $1900 for a 400 amp panel and various other charges. During the hearing, Mr. Clark acknowledged that Complainant had been paid the $1900 for the 400 amp panel.

Mr. Clark acknowledged that the other “extras” were for items that Complainant performed after negotiating with the homeowner.

Respondent did not pay Complainant for the other items listed in Complainant’s invoice because Complainant did not ask for or receive Respondent’s approval to include those items in its scope of 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 ....” Ariz. Rev. Stat. § 32-1154(A)(10).

Respondent’s position that there was no money due on the 666-matter or the 667-matter because Complainant’s work was incomplete and otherwise deficient is an affirmative defense on which it bears the burden of proof. Respondent has met that burden and shown by a preponderance of the evidence that Complainant had not properly completed the work at issue in those to matters and that there was no amount due to Complainant in those two cases.

Complainant acknowledged that it had been paid $1900 of the $6650 at issue in the 668-matter. The preponderance of the evidence shows that Complainant agreed to complete additional work for the homeowner in that matter without obtaining Respondent’s approval or authorization. Consequently, Complainant did not prove that there was any amount due to Complainant in this case.

Consequently, it has not been shown by a preponderance of the evidence that Respondent has violated section 32-1154(A)(10) and these consolidated matters should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case numbers 2021-00666, 2021-00667, and 2021-00668.

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.

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-137160-45720000Done this day, May 27, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000