ALJDEC decisions subject to certification as final

2022A-01743-NPC-ROC · Registrar of Contractors · 2022-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arm & Hammer Framers, Inc.,

COMPLAINANT

JBD Development, LLC,

License No. ROC 306147,

RESPONDENT

No. 2022A-01743-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 13, 2022

APPEARANCES: Timothy Yniguez appeared on behalf of Complainant Arm & Hammer Framers, Inc. Daniel Albrecht appeared as a witness for Complainant Arm & Hammer Framers, Inc. Jennifer Dunn appeared on behalf of Respondent JBD Development, LLC. Bobby Dunn appeared as a witness for Respondent JBD Development, LLC.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

JBD Development, LLC (“Respondent”) is the holder of License No. 306147 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about March 3, 2022, Arm & Hammer Framers, Inc. (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant for “extra work labor only.”

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation to Respondent for the alleged violation of A.R.S. § 32-1154(A)(10).

On or about November 11, 2021, Complainant contracted with Respondent for Respondent to perform the framing, including the provision of hardware and labor, for the construction of a custom home. The contract price was $20,000.00. The parties stipulated at hearing that Respondent paid Complainant in full for the scope of work encompassed in the contract.

Timothy Yniguez, Complainant’s owner, testified at hearing that after the completion of the scope of work contained in the contract, Respondent requested that Complainant perform additional work at the jobsite. Mr. Yniguez testified that Complainant completed the requested work and invoiced Respondent in the amount of $950.00. Mr. Yniguez asserted that the scope of work performed by Respondent included additional framing that was not on the plans for the project. Complainant did not offer the plans into evidence at hearing, nor are the plans contained in the Administrative Record.

Dan Albrecht, Complainant’s foreman, testified that Complainant completed the contract, the inspection and all corrective work was performed, Complainant was paid in full, and Complainant removed all of its equipment from the jobsite. Mr. Albrecht testified that thereafter, Respondent requested that Complainant perform four additional work items, two of which had been on the original plans that Respondent had deleted, however, subsequent to the deletion, the homeowner requested that they be added back. Mr. Albrecht testified that the four additional items included two soap dish niches, a shower seat, and a shower wall that would enable the attachment of glass doors.

Jennifer Dunn, Respondent’s owner, testified that Respondent paid Complainant in full prior to the final inspection and that the items Complainant was asked to perform were on the original plans and bid. Respondent submitted into evidence a screenshot of a January 25, 2022 text message exchange between Ms. Dunn and Mr. Yniguez. The text message exchange indicates in pertinent part:

Also Guest shower is not getting a pan so Need framing for glass door also bench didn’t get done that was on plan.

We asked you on that

You asked me on what?

On seat and specs

Its ok

Bobby Dunn, a subcontractor for Respondent, testified that Mr. Albrecht “took care” of all “red tag items” and told Mr. Dunn that Complainant had “missed a couple of things, apologized for his boss, and did not want to get a back charge.”

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 is by a preponderance of the evidence.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

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 the scope of work that was encompassed in the parties’ contract as the plans and specifications were not submitted into evidence. Therefore, there is no reliable way for the Administrative Law Judge to determine whether the four items for which Complainant invoiced Respondent an additional $950.00 was part of the original scope of work or not.

Because Complainant failed to establish that the work it performed and for which it claims it was not paid was not part of the scope of work pursuant to the parties’ contract and plans and specifications, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant a sum in excess of $750.00 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 dismiss Complainant’s Complaint against Respondent’s license based on Complainant’s failure to prove a violation of A.R.S. § 32-1154(A)(10).

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 forty (40) days from the date of the certification.

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

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary