ALJDEC decisions subject to certification as final
2021A-06782-NPC-ROC · Registrar of Contractors · 2022-05-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Master Hands Painting Decorating Services & Chicago Style De,
COMPLAINANT,
v.
ZM Development, LLC
License No. ROC 308128,
RESPONDENT.
No. 2021A-06782-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 28, 2022 and April 12, 2022
APPEARANCES: Ruby Gonzalez represented Complainant Master Hands Painting Decorating Services & Chicago Style De. Zeljko Minic represented ZM Development, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent ZM Development, LLC (ZM) holds license number 308128 issued by the Arizona Registrar of Contractors (ROC).
2. ZM’s qualifying party is Zeljko Minic.
3. Complainant Master Hands Painting Decorating Services & Chicago Style De (Master Hands) and ZM entered into a contract wherein Master Hands would perform painting work for ZM at a residence located at 11001 N. 60th Street, Scottsdale, AZ 85254 (the project).
4. At the time of the contract, John Gonzalez Sr. was a member of Master Hands.
5. Master Hands issued invoice number 000273 on November 14, 2020 to ZM that included the exterior fence walls. The amount for the exterior fence walls was shown as $0 because the parties agreed that the exterior fence walls would be an add on. See Respondent’s Exhibit A, pg. 21 that clarifies that the exterior fence would be charged as an extra.
6. Master Hands subsequently issued an updated invoice number 000273 to ZM dated November 14, 2020 for work performed at the project. The invoice included a $5,500 charge to paint the exterior fence walls of the home. The invoice showed a balance of $7,750.
7. Mr. Minic received the updated invoice 000273 that included a $5,500 charge for the exterior fence walls several times. See the Hearing Audio Record at (1314 2022-04-12).AAC at 1:18:45 – 1:19:35. However, Mr. Minic ignored the $5,500 charge. See Mr. Minic’s testimony on the Hearing Audio Record at (1314 2022-04-12).AAC at 1:13:30 – 1:14:32.
8. ZM did not pay the balance of $7,750.
9. On December 20, 2021, Master Hands filed a complaint with the ROC alleging that ZM failed to pay invoice number 000273.
10. On January 12, 2022, the ROC issued a Citation against ZM’s license alleging that ZM may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(10).
11. ZM filed a timely response to the Citation and the matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. A hearing was held on March 28, 2022 and April 12, 2022.
13. At hearing, Master Hands presented the testimony of Ruby Gonzalez, a member of Master Hands and Brittany Gonzalez, an employee of Master Hands. ZM presented the testimony of Mr. Minic and John Chandler, Mr. Minic’s business partner.
14. At hearing, Mr. Minic did not dispute that Master Hands performed painting work at the project. Mr. Minic contended that (1) he never agreed to pay $5,500 for the painting of the exterior fence walls, (2) the color of the paint of the exterior fence walls did not match the paint color of the house, (3) Master Hands failed to perform necessary “touchup” work on the project and a different job with Master Hands, (4) that Master Hands owed ZM $2,000 because ZM overpaid Master Hands on a different job, and (5) Master Hands owed ZM $3,566.22 for the amount that ZM paid for the paint sprayer used for the project.
15. Mr. Minic asserted at hearing that he paid $3,566.22 for the paint sprayer that Master Hands used to complete the project. Mr. Minic offered into evidence a text message from Mr. Gonzalez who agreed to reimburse Mr. Minic for the purchase of the paint sprayer. contended that Mr. Gonzalez sent him a text message asking Mr. Minic to purchase the paint sprayer and that they could “work it out on other jobs”. See Respondent’s Exhibit A, pgs. 16, 18, and 10.
16. Mr. Minic offered into evidence Respondent’s Exhibit A, pg. 22 to show that the color of the exterior fence wall does not match the home. Mr. Minic and
Mr. Chandler testified that the exterior fence wall did not match the home and that Master Hands failed to perform touch up work on the project and a different job.
17. Mr. Minic asserted that Brittany Gonzalez has an “attitude” and he told her that he could not do business with her. See the Hearing Record Audio (1301 2022-03-28).AAC at 33:45 to 34:04.
18. Ruby Gonzalez explained that Master Hands tried several times to complete the “touchups”. However, Mr. Minic did not want Master Hands to complete the “touchup” work. Ms. Gonzalez explained that on one occasion, Mr. Minic became aggressive and came close to Brittany Gonzalez’s face. Ruby Gonzalez stated that the $2,000 overpayment was applied to a different job. Ruby Gonzalez and Brittany Gonzalez explained that after Mr. Gonzalez passed, Mr. Minic told them that the paint sprayer was a gift and that Master Hands did not have to worry about paying for the paint sprayer.
19. Brittany Gonzalez explained that she visited the project and reviewed the exterior fence walls after Master Hands completed the project. The color code listed on the invoice is not a custom color match. Brittany Gonzalez explained that the stucco is a different color from the fence walls, however, the stucco was painted after Master Hands painted the exterior fence walls. Brittany Gonzalez explained that Master Hands did not paint the stucco. Brittany Gonzalez explained that the charge for the fence walls was based on the square footage of the fence walls and further, the color that was used to paint the fence walls was the same color that was used on the interior of the home.
20. Mr. Minic testified to the effect that Master Hands was required to rectify the problems with the fence before he would discuss a remaining payment.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish cause to suspend or
revoke Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of
fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
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.” A.R.S. § 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).
7. 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 . . . 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 or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”
8. Payment for “[s]ervices rendered in connection with the licensee’s operations as a contractor” does not include interest, finance charges, lien charges, or other charges that are based solely on contract terms.
9. There was no evidence provided of written estimates to repaint the exterior fence wall, nor to perform touchups at the project. Furthermore, there was no evidence provided of receipts to pay for touchups at the project. There was no evidence provided at the hearing of a written agreement that the monies owed under the project would be offset by amounts owed on other contracts between the parties. However, the evidence presented at hearing shows that ZM paid $3,566.22 for the paint sprayer and
Mr. Gonzalez agreed to reimburse ZM for the purchase.
10. Upon consideration of all of the evidence presented at hearing, the Administrative Law Judge concludes that Respondent violated Ariz. Rev. Stat § 32-1154(A)(10) as alleged. However, the amount owed should be reduced by the amount ZM paid for the paint sprayer: $3,566.22.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend ZM Development, LLC License No. ROC 308128 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $4,183.78 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $4,183.78 in certified funds, the Registrar may close the Complaint in Case No. 2021A-06782.
Done this day, May 2, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By Miranda Alvarez
Legal Secretary