ALJDEC decisions subject to certification as final

2021A-04613-NPC-ROC · Registrar of Contractors · 2022-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

JNS Tile & Remodeling LLC,

COMPLAINANT

Construction Unlimited Arizona, LLC

License No. ROC 327723,

RESPONDENT

No. 2021A-04613-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 24, 2022

APPEARANCES: James Suderback, Owner and Qualifying Party, appeared on behalf of Complainant JNS Tile & Remodeling LLC. Jonathan Doe, Owner and Qualifying Party, appeared on behalf of Respondent Construction Unlimited Arizona, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Construction Unlimited Arizona, LLC (Respondent) is the holder of License No. 327723 issued by the Registrar of Contractors (Registrar).

On or about September 16, 2021, JNS Tile & Remodeling LLC (Complainant) filed four complaints against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $16,140.00 for work performed.

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).

Mr. Suderback testified that the total due to Complainant was $16,140.00 for the four outstanding invoices, with the balance of the individual invoices being $9,880.00 (Invoice 1662), $4,660.00 (Invoice 1689), $800.00 (Invoice 1690), and $800.00 (Invoice 1688). Mr. Suderback acknowledged that Complainant and Respondent did not have written contracts for any of the four projects, but that Complainant provided Respondent with invoices showing the cost to perform the work and Respondent made payments on some of the invoices. Mr. Suderback stated that if Respondent had asked for any changes or refused any of the proposed work, he would have changed the invoice to reflect the change in the parties’ agreement.

Mr. Doe testified that Respondent had a written contract attached to the work order setting out the scope of work, but acknowledged that he did not have a copy of the contract that was signed by both parties. Mr. Doe asserted that there were still deficiencies with the projects and work that needed to be completed. Mr. Doe admitted that Respondent owed Complainant $8,875.00, with the balance of the individual invoices being $3,959.00 (Invoice 1662), $3,822.50 (Invoice 1689), $553.50 (Invoice 1690), and $540.00 (Invoice 1688). Mr. Doe also indicated Respondent had not been paid in full for all of the projects, but admitted that it had been paid more than the amount Complainant alleged it was owed on each of the projects.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.

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.

Both parties agreed they had not executed written contracts specifying the exact scopes of work or the agreed upon amounts due for those projects.

The weight of the credible evidence established that Respondent owed Complainant a total of $16,140.00 for the work performed on four projects.

Respondent 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 $16,140.00 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 Construction Unlimited Arizona, LLC’s License No. 327723 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $16,140.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $16,140.00 in certified funds, the Registrar may close the Complaint in Case No. 2021-04613.

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 40 days from the date of the certification.

-54864001

001

-137160-45720000Done this day, February 14, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000