ALJDEC decisions subject to certification as final

2021A-06140-NPC-ROC · Registrar of Contractors · 2022-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Jackson Inc.,

COMPLAINANT

M & I Construction Inc

License No. ROC 273230,

RESPONDENT

No. 2021A-06140-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 15, 2022

APPEARANCES: Mark Ambrose for Complainant; Rafael Ochoa for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On February 4, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on March 15, 2022 at the Office of Administrative Hearings.

Through its Notice of Hearing ROC alleges that Respondent M & I Construction Inc. may have violated Ariz. Rev. Stat. section 32-1154(A)(10). Respondent holds License No. 273230 issued by ROC.

Rafael Ochoa, Respondent’s president, appeared and testified for Respondent, which also presented the testimony of Jennifer Pope and Brian Rebello.

Mark Ambrose, Complainant William Jackson Inc.’s secretary, appeared and testified for Complainant.

Respondent was performing work at Ms. Pope’s and Mr. Rebello’s home.

Ms. Pope agreed to purchase Medallion brand cabinets through Complainant that would then install the cabinets in her house.

The first page of the contract shows that Respondent is Complainant’s customer, but in all cases Ms. Pope signed as the customer. When Complainant presented the contract to Ms. Pope, it removed page three that has the payment terms.

There are several versions of page three, with the operative one signed on behalf of Complainant, but none of which were signed by Ms. Pope or Respondent.

The operative page three shows that an initial payment of $17,781 was due as a deposit and that a balance of $18,460 was to be paid when the cabinets were installed.

Respondent made the initial payment of $17,781 to Complainant. At the hearing, the parties were in agreement that Respondent was responsible to pay Complainant the balance when due and that Ms. Pope was to pay Respondent.

The contract calls for the customer and Complainant to jointly inspect the work and create a punch-list during a walk-through that was to be conducted after the contract was substantially completed.

In late August and early September 2021, the cabinets arrived at the house, but there was at least one damaged cabinet and other issues that required correction. Complainant installed what it could and agreed to make the necessary repairs or corrections, but doing so required Complainant to order replacement material.

Respondent and Ms. Pope had concerns as to the length of time it was taking for Complainant to secure the replacement parts, and Ms. Pope had concerns that Complainant was planning to get glass fronts locally, but would not show her a sample of that glass.

Respondent and Ms. Pope prepared a punch-list and requested a walk-through but Complainant was not willing to conduct one until the additional work was completed.

On October 14, 15 and 18, Complainant performed work at the house including repairing some of the punch-list issues that Respondent and Ms. Pope had identified.

After Complainant performed its work in October, Mr. Ochoa requested a walk through, but Complainant would not agree unless Respondent paid the balance due.

Respondent has not paid Complainant the balance due because Mr. Ochoa and Ms. Pope have had a loss of confidence in Complainant in that they believe that there were deficiencies with Complainant’s work in October and some of the issues from the original punch-list were not fixed, and because the parties have not had a walk-through as called for in the contract.

Complainant’s position is that the contract calls for the final payment to be made when the cabinets were installed, which has occurred, and that it is willing to make any required repairs, but not until that payment is made.

The parties tried to reach a compromise in which Respondent would make a partial payment and Complainant would perform what it considered to be the punch-list repairs, but they could not come to terms.

Ms. Pope testified that as of the hearing date, there were six or seven cabinets that did not have the glass fronts installed.

Ms. Pope has not fully paid Respondent what she owes it for the project.

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....” Ariz. Rev. Stat. § 32-1154(A)(10).

The contract clearly calls for a walk-through on substantial completion of the contract, which walk-through Complainant has not performed. Although the contract appears to call for the final payment on installation of the cabinets, neither Respondent nor Ms. Pope signed the page of the contract setting out those payment terms and it has not been proven that the parties had a “meeting of the minds” requiring Respondent to make the payment prior to the required walk-through.

It has not been proven by a preponderance of the evidence that the final payment is due to Complainant. Consequently, it has not been proven that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(10) and this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2021-06140 is 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 forty days after the date of that certification.

-54864001

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-137160-45720000Done this day, March 23, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000