ALJDEC decisions subject to certification as final

2021A-05174-NPC-ROC · Registrar of Contractors · 2022-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

AMERI CUSTOM STONE LLC,

COMPLAINANT

Bill's Pool Service Inc.

DBA: Money's Worth Pool Construction,

License No. ROC 127739,

RESPONDENT

No. 2021A-05174-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 15, 2022

APPEARANCES: Juan Carlos Aguirre, Owner and Qualifying Party, appeared on behalf of Complainant AMERI CUSTOM STONE LLC. Respondent Bill's Pool Service Inc., doing business as, Money's Worth Pool Construction was represented by Jeffrey Laskin.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Bill's Pool Service Inc., doing business as, Money's Worth Pool Construction (Respondent) is the holder of License No. 127739 issued by the Registrar of Contractors (Registrar).

On or about October 13, 2021, AMERI CUSTOM STONE LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $27,622.60 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).

Prior to the hearing, Respondent served Complainant with a subpoena seeking, in part, accounting records Complainant intended to use at hearing to support its claim. Complainant did not respond to the subpoena.

Complainant did not file any prehearing disclosure including a witness list or exhibits prior to the hearing as required. Respondent’s counsel contacted Complainant after the deadline expired to see if Complainant had documents it was intending to introduce at the hearing. Complainant did not respond to the inquiry from Respondent’s counsel.

At the time of the hearing, Complainant appeared with a witness and numerous proposed exhibits that had not been disclosed at least seven days prior to the hearing.

Respondent requested that Complainant’s witness and proposed exhibits be excluded from the hearing based on Complainant’s failure to respond to the subpoena or to submit a prehearing disclosure statement at least seven days prior to the hearing.

Upon questioning, Mr. Aguirre indicated that he was advised by the Registrar that he did not need to comply with the subpoena. Further, Mr. Aguirre asserted he was unaware Complainant needed to file a disclosure statement and denied seeing the following provision in the Notice of Hearing:

DISCLOSURE STATEMENT

At least seven calendar days before the hearing, each party must prepare and serve a disclosure statement on all other parties, and file it with the Office of Administrative Hearings. A.A.C. R4-9-118; A.A.C. R2-19-108. The disclosure statement must include any exhibit the party will use at the hearing. A party’s failure to timely disclose any witness or exhibit, without good cause, may result in the administrative law judge excluding those witnesses or exhibits from being used at the hearing. A.A.C. R4-9-118(C). A sample disclosure form is available on the Registrar’s website at https://roc.az.gov/content/prehearing-disclosurestatement.

Based on the arguments presented and Complainant’s complete failure to provide Respondent or the Office of Administrative Hearings with any proposed exhibits prior to the hearing, Respondent’s request was granted. Complainant was permitted to reference the documents included in the agency record that was submitted to the Office of Administrative Hearings by the Registrar with the matter and Respondent’s documents.

Mr. Aguirre testified that the total due to Complainant was $13,625.50 for work it performed. Mr. Aguirre referenced $8.547.10 due to a different company that Mr. Aquirre did not own and that was not licensed at the time the work was performed, but indicated that company was pursuing other methods to recoup the payment. Mr. Aguirre stated that he hired Amil Fornatora to review his financial records to get Complainant organized, but admitted he did not speak to Mr. Fornatora after he created the spreadsheet that was submitted with the complaint. Mr. Aguirre acknowledged did not have any signed contracts with Respondent for the projects at issue. Rather, Mr. Aguirre indicated that two of the projects had unsigned contracts and the rest were supported by invoices. Mr. Aguirre stated the parties did not execute any written change orders. As to the projects, Mr. Aguirre maintained that Complainant was owed $6,247.00 on the Krieger project; $2,175.00 on the Pearson project; $1,150.00 on the Adamanda project; $350.00 on the Carefree project; and $3,703.50 on the Stern project. On cross-examination, Mr. Aguirre admitted that certain checks made out to Complainant and apparently deposited or cashed at a bank were not reflected in Complainant’s spreadsheet.

William M. Griffin, President, Owner, and Qualifying Party of Respondent, testified that Respondent had paid Complainant more than the contracted amount in the five projects. Mr. Griffin noted that when he received invoices from Complainant, he would mark the invoice with corrections if he discovered errors and then pay the corrected sum. Mr. Griffin stated Complainant had never questioned this process of, effectively, executing change orders. Mr. Griffin went through the invoices for the projects at issue in this matter and the changes he had noted. Further, Mr. Griffin reviewed a number of checks issued to Complainant that were not accounted for in Complainant’s spreadsheet. Some of the checks were paid for a specific project, but some were to be considered a credit on Respondent’s account to help Complainant, which was in a financial bind at the time. Mr. Griffin concluded that Respondent overpaid Complainant at least $10,651.50 on the five 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.

The evidence failed to establish that Respondent owed Complainant any amount.

Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant for services or materials rendered in connection with Respondent’s contracting business.

RECOMMENDed order

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant AMERI CUSTOM STONE LLC’s complaint in Case No. 2021A-05174 against Respondent Bill's Pool Service Inc., doing business as, Money's Worth Pool Construction’s License No. 127739.

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, March 3, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000