ALJDEC decisions subject to certification as final

2022A-01198-NPC-ROC · Registrar of Contractors · 2022-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Super Handyman Service Phoenix AZ LLC,

COMPLAINANT

Wholesale Floors LLC,

License No. ROC 312921,

RESPONDENT

No. 2022A-01198-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 6, 2022

APPEARANCES: Jeremy Amendt, Owner and Qualifying Party, appeared on behalf of Complainant Super Handyman Service Phoenix AZ LLC. Troy Whisehunt, CFO, appeared on behalf of Respondent Wholesale Floors LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Wholesale Floors LLC (Respondent) is the holder of License No. 312921 issued by the Registrar of Contractors (Registrar).

On or about December 22, 2021, Respondent asked Super Handyman Service Phoenix AZ LLC (Complainant) for a quote for the installation of baseboards on a project.

Complainant provided a quote totaling $3,552.00 with payment due upon completion.

On or about January 26, 2022, Respondent issued a purchase order accepting Complainant’s quote to complete the project.

On or about February 9, 2022, Complainant finished installing the baseboards. The baseboards, as installed, included areas with significant gaps between the bottom or the baseboards and the flooring. Photographs of the work show a gap of approximately half the depth of the first joint of a middle finger, or approximately half an inch. As a possible method to correct the issue, Complainant proposed caulking the gaps under the baseboards. Complainant caulked a portion of the baseboards as a demonstration for the homeowner to inspect and determine if it was acceptable. Complainant understood that the homeowner would inspect the work the following day and Respondent would let Complainant know the homeowner’s thoughts.

On or about February 10, 2022, after Complainant did not hear back from Respondent regarding the homeowner’s thoughts on the caulking fix, Complainant issued an invoice to Respondent.

On or about February 11, 2022, Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $3,552.00 for the work performed.

After Complainant issued the invoice and filed the Complaint, Respondent hired the flooring installer to rip out and reinstall all the baseboards.

The Registrar then issued a Citation alleging a possible violation of A.R.S. § 32-1154(A)(10). Respondent filed a timely response denying the alleged violation.

A hearing in this matter was scheduled to convene at 1:00 p.m. on June 6, 2022. The Notice of Hearing included the following advisement:

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.

On May 31, 2022, Respondent requested a continuance of the hearing because the Registrar was scheduled to perform a jobsite inspection of the project on July 17, 2022.

On June 1, 2022, Complainant filed an objection to the requested continuance because, by Respondent’s own admission, the work Complainant performed had been altered and the Registrar would not be able to substantiate a workmanship violation.

On June 2, 2022, the Administrative Law Judge denied the requested continuance.

On June 3, 2022, Respondent submitted its proposed exhibits to the Office of Administrative Hearings. Because the Office of Administrative Hearings received the exhibits through the mail, it was no known if a copy of the exhibits was provided to Complainant.

On June 3, 2022, Complainant submitted its proposed exhibits to the Office of Administrative Hearings through the agency’s website. Complainant did not copy the exhibits to Respondent.

At the time of the hearing, Respondent objected to Complainant’s exhibits because a copy had not been provided to Respondent at any point prior to the hearing, much less at least seven days prior to the hearing as required by the Notice of Hearing. In response, Complainant objected to Respondent’s exhibits because they were not timely filed.

Neither party provided good cause for the failure to submit the exhibits at least seven days prior to the hearing. Accordingly, the Administrative Law Judge excluded the exhibits from both parties. The Administrative Law Judge conducted the hearing and relied on the information provided to the Office of Administrative Hearings from the Registrar when the matter was referred for hearing.

Mr. Amendt testified that the total due to Complainant was $3,552.00. Mr. Amendt acknowledged that there were gaps under the floorboards in at least one room of the home, but attributed those gaps to issues with the installation of the flooring. Mr. Amendt stated that he believed the caulking to be an acceptable fix to the problem and he would have performed that work given an opportunity. Mr. Amendt asserted that Complainant’s work was completed on February 9, 2022, and Respondent was obligated to pay the invoice on February 10, 2022, when it was issued. Mr. Amendt testified that he “knew” Respondent was not going to pay the invoice when he was not contacted on February 10, 2022, with a report of the homeowner’s thoughts on the caulking. Mr. Amendt argued that only the Registrar could determine that the work Complainant performed was not in compliance with the Registrar’s standards.

Mr. Whisehunt testified that Complainant accepted the flooring when it started installing the baseboard. Mr. Whisehunt also asserted that, while the flooring may not have been completely level, it was within the Registrar’s standards. Mr. Whisehunt argued that Complainant should have notified Respondent when the gaps became obvious, but Complainant failed to do so and kept installing the baseboards. Mr. Whisehunt stated that the caulking Complainant performed was not an acceptable method to address the issue. Mr. Whisehunt testified that the new installation of baseboard did not have any gaps and was acceptable to the homeowner.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due or that it had not been paid sufficient funds on the project at issue.

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 established that Complainant and Respondent entered into a contract for the installation of baseboards for a total cost of $3,552.00, due upon completion of the work to be performed.

While Complainant asserted that it had completed the installation of the baseboards, Complainant acknowledged that something had to be done to address the gaps in the flooring.

Complainant attempted to abdicate all responsibility for the gaps because the flooring was not level, but Complainant accepted the surface when it installed the baseboards above the flooring.

Because Complainant’s work was not complete, no money was due to Complainant at the time it filed the Complaint against Respondent.

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 complaint in Case No. 2022-01198 against Respondent License No. 312921.

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.

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-137160-45720000Done this day, June 27, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractor

By Miranda Alvarez

Legal Secretary -54864001

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