ALJDEC decisions subject to certification as final

2021A-00829-NPC-ROC · Registrar of Contractors · 2021-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Custom Floor Covering Inc.,

COMPLAINANT

I F S Flooring LLC

License No. ROC 243681, 269096

RESPONDENT

No. 2021A-00829-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 13, 2021

APPEARANCES: Don Geise for Complainant; Peter Perry for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 7, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 13, 2021 at the Office of Administrative Hearings.

Through its Notice of Hearing, ROC alleges that Respondent IFS Flooring LLC may have violated Ariz. Rev. Stat. section 32-1154(A)(10).

Respondent holds License Nos. 243681 and 269096 issued by ROC. Peter Perry is Respondent’s owner.

Complainant is Custom Floor Covering Inc. Complainant’s president is Don Geise.

In November 2020, Respondent’s employee Tina Geise contacted Complainant and issued a work order calling for Complainant to perform work at a church in Phoenix, with the price being $250.

Mr. Geise arrived at the project and determined that the scope of work was more extensive than Ms. Geise had indicated. In particular, there were two rooms requiring repair and the rooms were much larger than Ms. Geise had indicated.

Mr. Geise called Ms. Geise to inform her that there was more work than she had originally approved, that the required work could not be completed for $250 and probably could not be completed in one day. Ms. Geise authorized Complainant to perform the additional work.

At the hearing, Ms. Geise confirmed that she had instructed Complainant to perform the additional work and she testified that she was aware that the cost would be more than the originally agreed upon $250.

Mr. Geise completed the work in the first room on the first day, and he and additional employees arrived the next day and completed the work in the second room.

After Complainant had completed the second room and loaded its equipment, Respondent’s job superintendent, Oliver Ammerman, instructed Complainant to perform additional work in a hallway.

The drywall in the hallway was textured, which required Complainant to spray the walls. Complainant completed the work in the hallway.

On December 1, 2020, which was soon after Complainant completed its work, it submitted to Respondent’s Ms. Geise an invoice for $934.65.

Ms. Geise testified that she received the invoice and placed it in Respondent’s “folder” for processing.

Respondent did not pay Complainant’s invoice and, on January 4, 2021, Complainant submitted to Ms. Geise a statement showing that the bill was past due.

Ms. Geise testified that she received the statement and placed it in the folder for processing. Soon after that, Ms. Geise left Respondent’s employ.

Respondent provided testimony to the effect that it had no record of receiving either the invoice or the billing statement, and that Ms. Geise’s computer did not show that these had been received.

Respondent did however subsequently receive from Respondent an invoice for $934.65, but was unwilling to pay because it takes the position that the additional work had not been properly approved according to its internal procedures. According to Respondent, because its procedures had not been followed, it would not be able to charge its client for the additional work.

Settlement discussions were unsuccessful, and Respondent sent to Complainant $250, which was the price for the original work, but Complainant did not cash that check.

At the hearing, Respondent took the position that its superintendent’s opinion was that Complainant’s work was not satisfactory, but it did not provide any evidence to rebut the testimony from Mr. Geise and Complainant’s employee Samuel Reyes that Mr. Ammerman had instructed Complainant to perform the work in the hallway.

Respondent’s Terri Bussell testified to the effect that she was the project manager and that neither Ms. Geise nor Mr. Ammerman were authorized to increase Complainant’s scope of work.

Ms. Bussell agreed however that Ms. Geise had been Complainant’s contact person for the current job and others, and that Respondent’s work order did not show that Complainant was required to get approval from someone else if there was to be a change in the 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 employees authorized Complainant to provide the additional work at issue. Under the facts of this matter, Complainant was justified in believing that those employees had authority to do so and the employees’ authorization is binding on Respondent. See e.g. O. S. Stapley Co. v. Logan, 6 Ariz.App. 269, 431 P.2d 910 (App. 1967).

The preponderance of the evidence shows that Respondent has violated section 32-1154(A)(10).

RECOMMENDED ORDER

IT IS RECOMMENDED that IFS Flooring LLC’s license numbers 243681 and 269096 be suspended until the Registrar receives proof that it has paid to Custom Floor Covering Inc. the balance due $934.65.

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