ALJDEC decisions subject to certification as final

2022A-00162-NPC-ROC · Registrar of Contractors · 2022-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Banker Insulation Inc,

COMPLAINANT

Flagstaff Handyman and Ranch Services

LLC

License No. ROC 318468,

RESPONDENT

No. 2022A-00162-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 1, 2022

APPEARANCES: Tim Puopolo appeared on behalf of Complainant Banker Insulation, Inc. Grant Bradley appeared on behalf of Respondent Flagstaff Handyman and Ranch Services.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Background and Procedure

According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on April 15, 2022, the Registrar issued License No. ROC 318468 for General Dual KB-2 Dual Residential and Small Commercial contracting on March 2, 2018. Grant Bradley is Respondent’s qualifying party/member.

On or about December 27, 2021, Complainant filed a non-payment complaint with the Registrar against Respondent for failing to pay Complainant $8,564.00 on an October 21, 2021 invoice. This was the remaining amount of contract of $12,812.00. The contract provided that Complainant was to blow insulation into walls on a house in which Respondent was constructing.

On or about January 26, 2022, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s contractor’s License No. ROC 318468.

On or about February 4, 2022, Respondent filed a written answer to the Citation that the Registrar had issued on Complainant’s complaint for non-payment. The answer alleged that construction on the project was stopped on or about September 20, 2021 by the homeowner. Further, according to the response, only a part of the work was completed by Complainant prior to that date, and Complainant was paid for the same. The remaining work was after completed after Respondent was asked to stop work and was no longer paid by homeowner.

The Registrar referred the complaint to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on April 1, 2022. Complainant submitted three exhibits and presented the testimony of Tim Puopolo. Respondent submitted two exhibits and presented the testimony of Grant Bradley, Respondent’s qualifying party/member.

Hearing Evidence

Mr. Puopolo testified that he received a partial payment of $3,398.40 on or about October 14, 2021. He testified further that the work was finished in October 2021.

Mr. Puopolo testified further that the homeowner contracted with Complainant separately for the purchase and installation of a fireplace, and homeowner paid Complainant directly for these services.

Mr. Puopolo also testified that while he had heard of some discrepancy between Respondent and homeowner, it was his understanding that Respondent was still on the job.

Finally, Mr. Puopolo testified that on October 7, 2021, Mr. Bradley sent an e-mail stating that he was still awaiting payment from the homeowner and that there was no mention however of any separation on the job. Mr. Puopolo believed that this would have been the opportunity for Mr. Bradley to inform him of what was going on with the homeowner.

Mr. Bradley testified he stopped work on September 20, 2021, as the homeowner stopped paying.

Mr. Bradley testified that the only thing that Complainant had completed was the wall insulation. He testified further that he believed that Complainant finished the job in October but he never saw the completed work. Also, Mr. Bradley stated that the homeowner took over as the owner/builder.

In addition, Mr. Bradley testified that the draw for the work that was left was never paid by the homeowner, and that he felt that the amount that was paid was sufficient for the work performed.

Finally, Mr. Bradley offered Exhibits A and B which explained the dispute with the homeowner on the project.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website on this date. Respondent’s license is current and in good standing. No discipline has ever before been taken against the license. There are two open complainants against Respondent at this time, one of which is the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses 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.”

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension or revocation against a contractor’s license,

Failure 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.

Respondent acknowledged that it failed to pay Complainant $8,564.00 on the second invoice for the project. Respondent argued that its failure was justified by failing to receive monies from the homeowner and no longer working on the project. These are affirmative defenses what would otherwise be a violation of A.R.S. § 32-1154(A)(10) that Respondent bears the burden to establish.

While Mr. Bradley established that he was not paid by homeowner, he did not present any evidence that he lacked the ability to pay. Therefore, he did not prove that Respondent had an affirmative defense justifying nonpayment.

Based on the foregoing, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $8,564.00.

RECOMMENDED ORDER

Based on the foregoing, it is ordered that thirty days after the effective date of the final order in this matter, Respondent Flagstaff Handyman and Ranch Services LLC License No. ROC 318468 shall be suspended until Respondent pays $8,564.00 to Complainant Banker Insulation Inc.

It is further ordered that if on or before thirty days after the effective date of the final order, the Registrar receives written proof from Respondent that is satisfactory to the Registrar that Respondent has paid Complainant $8,564.00 by certified or cashier’s check, the Registrar not suspend Respondent’s license but, instead, close Case No. 2022-00162.

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 will be five days from the date of that certification.

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-137160-45720000Done this day, April 15, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000BY Miranda Alvarez

Legal Secretary